Delhi High Court
Lakshmi Chand Singal (Decd) Thr ... vs Tara Chand (Decd) Thr Lrs on 10 December, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 1434/2011 & C.M. Nos.22392/2011 & 6396/2014
% 10th December, 2014
LAKSHMI CHAND SINGAL (DECD) THR LRS ..... Petitioners
Through: Mr. V Pal Singal.
versus
TARA CHAND (DECD) THR LRS ..... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India is filed by
the plaintiff in the suit, impugning the order dated 18.8.2011 of the trial
Court, which has refused to recall the order dated 14.01.2009 by which the
right of evidence of the plaintiff was closed. I may note that the subject suit
is of 1975 vintage i.e. the suit is around 40 years old.
2. Impugned order records that evidence of the petitioner was closed
back in 1998. Thereafter High Court granted one opportunity to the
petitioner to lead evidence but still evidence was not led in spite of eight
opportunities and thereafter right to evidence of the plaintiff was closed.
CMM 1434/2011 Page 1 of 3
The impugned order also records that the High Court order dated 3.10.2006
in CRP No.689/1997 granted opportunity to the plaintiff to only summon the
witness from MCD for proving certified copies of documents on record but
the said witness had appeared on 10.05.2007 in court and stated that no
record was available. Therefore, no further evidence was to be led. In any
case more than sufficient opportunities were granted to the plaintiff for
leading evidence. The relevant discussion contained in para 3 and 4 of the
impugned order read as under :
"3. In reply defendant has opposed the application stating
that plaintiff himself was not present when the matter was
called for hearing. It is also stated that evidence of plaintiff
was closed in the year 1998 and thereafter plaintiff challenged
the said order in Hon'ble High Court. Hon'ble High Court
granted one opportunity to plaintiff to lead evidence but
plaintiff failed to lead evidence despite eight opportunities and
failed for second time to lead evidence. It is further stated that
the plaintiff has also failed to bring on record the translated
document as directed by the court.
4. Perusal of record shows that Hon'ble High Court by
order dated 03.10.06 in CRP No.689/1997 granted an
opportunity to plaintiff to summon the witness from MCD only
for proving certified copies of documents on record subject to
cost of Rs.3000/-. Order dated 10.05.07 shows that summoned
witness from MCD appeared in the court and submitted that
record is not available with the MCD and said witness was
discharged. Thereafter, an application under section 114 CPC
recalling order dated 10.05.2007 discharging the said witness
CMM 1434/2011 Page 2 of 3
was also dismissed by my Ld. Predecessor by order dated
09.07.08. However, after discharging the witness from MCD
plaintiff was given opportunity to lead remaining PE on
18.11.07. From 13.11.07 to 14.01.2009 for more than one year
plaintiff has failed to lead any evidence. On 20.08.08,
12.09.08, 12.12.08 and 14.01.09 plaintiff failed to lead any
evidence despite various opportunities. From the record it is
clear that plaintiff has been negligent in leading evidence
despite various opportunities given by Hon'ble High Court as
well as by this court. A litigant adopting delaying tactics do
not deserve soft hand of law. I do not find any merits in the
present application. Application under order 47 CPC filed by
plaintiff recalling order dated 14.01.2009 is dismissed."
(underlining added)
3. In view of the above I do not find any flaw in the impugned order
requiring exercise of extraordinary and discretionary jurisdiction of this
Court under Article 227 of the Constitution of India.
4. Dismissed.
DECEMBER 10, 2014 VALMIKI J. MEHTA, J.
vld
