Delhi High Court
Shri Dharamveer Bhardwaj vs Shri Subhash Sharma on 23 December, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1118/2014 & CM 21194/2014 (stay)
% 23rd December, 2014
SHRI DHARAMVEER BHARDWAJ ......Petitioner
Through: Mr. D.Moitra, Adv.
VERSUS
SHRI SUBHASH SHARMA ...... Respondent
Through: None.
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 defendant/tenant impugning the order of the trial court dated 20.11.2014
by which the trial court has closed the evidence of the petitioner/defendant
not only on account of the non-payment of the cost imposed, but also
because the advance copy of the affidavit by way of evidence which was
directed to be served upon the respondent/plaintiff, was not served.
2. Those tenanted premises are not covered under the Delhi Rent Control
Act, 1958 whose rate of rent is more than Rs.3,500/- per month, and as is the
case of the respondent/plaintiff in the subject suit. It is not unknown and in
CMM. No.1118/2014 Page 1 of 5
fact it is quite common that a petitioner/defendant/tenant uses all tactics to
delay the suit for possession thus causing prejudice to the
respondent/plaintiff/landlord.
3. In the present case, first opportunity for leading evidence was given to
the petitioner/defendant on 07.10.2014, but it was not availed of. Therefore,
while granting adjournment on 07.10.2014, the trial court imposed costs and
also made it clear that advance copy of the affidavit by way of evidence will
be supplied to the respondent/plaintiff 10 days before the next date of
hearing so that the respondent's/plaintiff's counsel knows what is stated in
the affidavit by way of evidence filed by the petitioner/defendant so that
necessary cross-examination is done on the next date fixed ie 20.10.2014.
4. The order dated 07.10.2014 reads as under:-
"S No. 333/13
07.10.2014
Present: Counsel for the plaintiff with plaintiff in
person.
Defendant in person.
Defendant seeks adjournment as his counsel
is not available.
No cogent ground has been mentioned for
seeking adjournment. Moreover, no evidence
affidavit has been filed on behalf of defendant.
However taking a lenient view, adjournment is
CMM. No.1118/2014 Page 2 of 5
granted subject to payment of cost of Rs.1500/- to
be paid by defendant to the plaintiff.
It is made clear that defendant is to supply
advance copy of evidence affidavit to the plaintiff
10 days prior to the next date of hearing.
Put up for DE on 20.10.2014.
(Naveen Gupta)
JSCC/ASCJ/GJ (North West),
Rohini Court, Delhi/07.10.2014"
5. Once again on 20.10.2014, no evidence was led by the
petitioner/defendant, and therefore subject to costs of Rs.2,500/- and in the
interest of the justice, one another opportunity was granted to the
petitioner/defendant to file affidavit by way of evidence and the suit was fixed
for 20.11.2014 for cross-examination of the petitioner's/defendant's witnesses.
6. The impugned order passed on 20.11.2014 closed the right of the
petitioner/defendant to lead evidence, and which order reads as under:-
"S No. 333/13
20.11.2014
Present: Counsel for the plaintiff.
Counsel for defendant with defendant in person.
Counsel for defendant has appeared before
the Court at 1:00 PM after several pass overs
having been sought by defendant for his
appearance.
Counsel for defendant has filed evidence affidavit
and an application under Section 151 CPC for
appointment of handwriting and finger prints
expert.
CMM. No.1118/2014 Page 3 of 5
Counsel for the plaintiff submits that neither
defendant has furnished advance copy of the
affidavit nor he has paid cost imposed upon him on
the last date of hearing. Since advance copy of
evidence affidavit had not been supplied, she is
unable to cross-examine the witness. She has
further submitted that the defendant had already
been permitted to engage a handwriting expert on
20.10.2014, but he did not take steps for
appointment of handwriting expert prior to today's
date of hearing.
After perusal of record, the Court is in
agreement with the submission made by counsel
for the plaintiff. By not supplying the advance
copy of the evidence affidavit, defendant is
virtually seeking an adjournment.
Perusal of record reveals that matter had
been earlier listed for leading defence evidence on
07.10.2014 and 20.10.2014, but the defendant did
not lead any evidence on those dates. Further,
previous cost of Rs. 2500/- is also not paid by
defendant. In view of mandate of Section 35B
CPC, defence of the defendant shall be struck off
for non-payment of the cost. In these
circumstances, defence evidence of the defendant
is closed.
Further, since the defence evidence has been
closed by the Court, the application under Section
151 CPC filed today becomes infructuous. Even
otherwise, the defendant had already been
permitted to engage a handwriting expert vide
order dated 20.10.2014 and he must have taken
appropriate measures in advance for appointment
of a handwriting expert, but he preferred not to
take such steps just to delay further proceedings of
the present case.
Put up for final arguments on 09.12.2014.
CMM. No.1118/2014 Page 4 of 5
(Naveen Gupta)
JSCC/ASCJ/GJ (North West),
Rohini Courts, Delhi/20.11.2014"
7. From the aforesaid facts, it is clear that the petitioner/defendant is
malafidely delaying the suit for possession filed against the
petitioner/defendant, and inspite of opportunities granted in the interest of
justice and on payment of costs, the opportunities given for leading evidence
were not utilized, and in fact cost imposed was also not paid. In fact
deliberately, the advance copy of the affidavit by way of evidence was not
supplied to the respondent/plaintiff so that no cross-examination can take
place and which would result in an adjournment on 20.11.2014.
8. In view of the facts of this case as stated above, I do not find any
reason whatsoever to interfere with the impugned order because certain
sections of litigants keep on playing games of hide and seek with the judicial
process. In the facts of the present case, I do not find any reason to exercise
my discretion under Article 227 of the Constitution of India.
9. Dismissed.
DECEMBER 23, 2014 VALMIKI J. MEHTA, J.
'sn'
