Delhi High Court
Sh Bharat Singh vs Sh Prithi Singh & Ors on 12 December, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) No. 822/2013
% 12th December, 2014
SH BHARAT SINGH ..... Petitioner
Through: Mr.V.K. Katiyar and Mr.Neeraj
Pandey, Advs.
versus
SH PRITHI SINGH & ORS ..... Respondents
Through: Mr.N.K. Jain, Adv.
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 impugns
the order of the Trial Court dated 06.07.2013, by which the Trial Court
rejected the request made on behalf of the petitioner/plaintiff for his cross-
examination to be done in terms of his evidence by way of affidavit filed.
Trial Court had closed the evidence of the petitioner/plaintiff by the order
dated 13.09.2012 on account of the repeated non-appearance of the
petitioner/plaintiff.
CM(M) 822/2013 Page 1 of 5
2. The relevant portion of the impugned order giving reasons for
refusing to recall the order dated 13.09.2012 reads as under:-
"Ld. counsel for plaintiff submits that plaintiff
somewhere in February, 2012, on his way to Bihar,
fell from the train in the midst of the journey and
remained lost one and half months. The plaintiff's
mental ability has been diminished to certain extent
due to injury suffered by him due to the fall. Ld.
counsel submits that plaintiff has still not fully
recovered and prays for consideration of his
application on humanitarian grounds.
There has been inordinate delay, incomplete
and unsubstantiated facts and latches on the part of
the plaintiff in filing of the application.
The application filed by the plaintiff does not
provide any detail or particulars about the alleged
train journey, details of the injury or the treatment
thereof and the period during which the plaintiff had
undergone the treatment as such.
Be that as it may, perusal of the record reveals
that after the disposal of pending application, the
matter was listed for cross-examination of PW1 on
16.11.2011 and thereafter, on 14.02.2012.
Even if the averments of the plaintiff are to be
considered, he has furnished no explanation for his
non-appearance on 16.11.2011 and 14.02.2012. The
NDOH was fixed at 03.04.2012. If the plaintiff was
not traceable, this fact was not brought to the
knowledge of the court on this date or any date
CM(M) 822/2013 Page 2 of 5
thereafter and adjournments were repeatedly sought
only on the grounds of sickness of the plaintiff.
After these two dates, three more opportunities
were given to plaintiff to lead evidence subject to cost
or Rs.5,000/- as directed by ld. Predecessor. Though
the Ld. counsel or proxy counsel for plaintiff
appeared on each and every date, the plaintiff was not
available for cross-examination and the matter was
adjourned on the ground of illness of the plaintiff.
The perusal of the application itself reveals that
application was drafted much prior to 07.12.2012 as
the date of hearing mentioned on the top of the
application is 07.12.2012, however the same got
attested on 12.12.2012 and was consequently filed on
the court on 21.12.2012.
In view of the above discussion, the application
stands dismissed". (underlining added)
3. A reading of the aforesaid observations contained in the
impugned order shows that about 5 opportunities were given to the
petitioner/plaintiff to come for his cross-examination but the
petitioner/plaintiff failed to do so. The case of the petitioner/plaintiff is
that he fell from the train and thereafter, he could not contact his
counsel because, he was away from his home for about one and a half
months on account of failing memory. On the aspect pleaded of failing
memory, the Trial Court notes that not even a single document had been
filed with respect to the hospital treatment or illness or medical
CM(M) 822/2013 Page 3 of 5
prescription etc etc and hence the court could not believe the case as set
up by the petitioner/plaintiff.
4. In the present case, the petitioner/plaintiff claimed that he was
dispossessed in the year 1988 with respect to the subject property which
is a slum property of about 25 square yards.
5. Counsel for the petitioner requests for one last opportunity for
cross-examination of petitioner/plaintiff, but, the counsel for the
respondents vehemently opposed the request for the reason that from
1988 the respondents have been forced into litigation on account of the
false suits which were initiated by the petitioner/plaintiff and actually
the petitioner/plaintiff was never in possession of the suit property for
him to claim that he was dispossessed.
6. I have thought long and hard on the aspect as to whether one
opportunity should be given to the petitioner/plaintiff for his cross-
examination. Unfortunately, the courts have to go as per the record
available and court cannot go on the basis which is not even prima facie
established. Trial Court notes that the petitioner/plaintiff has filed no
proof whatsoever of his alleged fall from the train or of his treatment
and which I have to agree as a correct conclusion. This Court therefore
CM(M) 822/2013 Page 4 of 5
feels that five opportunities which were given hence could not be on
account of the petitioner/plaintiff having suffered injuries on account of
falling from the train and was, therefore, allegedly untraceable to even
his own family members for about one and a half months.
7. In view of the above, I have no option but to dismiss this petition
and it is accordingly dismissed.
December 12, 2014 VALMIKI J. MEHTA, J.
neelam
