M/S Devidayal Stainless Steel ... vs Smt. Prakash Devi Anand
2014 Latest Caselaw 3375 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) 706/2014 & CM No.11901/2014

%                                                 28th July , 2014

M/S DEVIDAYAL STAINLESS STEEL INDUSTRIES PVT. LTD.
                                              ......Petitioner
                  Through: Ms. Anupama Kaul, Adv. for Mr.
                           Prabhjit Jauhar, Adv.


                          VERSUS

SMT. PRAKASH DEVI ANAND                                 ...... Respondent
                  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 impugns

the order of the trial court dated 30.1.2014 by which the trial court has

allowed the application of the respondent/landlord for recalling of the

witness Sh. Atam Aggarwal for cross-examination. The main petition is a

petition under Section 14(1)(b) of the Delhi Rent Control Act, 1958 seeking

eviction on the ground of subletting.




CM(M) 7062014                                                               Page 1 of 3
 2.    The first date which was fixed for cross-examination of the witness of

the petitioner (respondent in the eviction petition) was 9.10.2012 when

witness appeared and tendered his evidence but the counsel for the

respondent on account of death in his family was not present. The case was

adjourned to 17.12.2012 when the court was on leave. On the next date of

hearing i.e 16.1.2013, the right of the respondent/landlord to cross-examine

the witness was closed.


3.    By the impugned order the application under Order 18 Rule 17 CPC

was allowed and which provision permits the court to recall any witness at

any stage.


4.    The court below notes that the application is supported by an affidavit

of the counsel for the respondent/landlord giving reasons for non-appearance

as also the fact that the stand of the petitioner/tenant (respondent in the court

below) that his witness was an out-station witness who had to come from

Bombay was not recorded in the earlier two orders.


5.    CPC is a handmaid of justice.         Parties can make mistake in the

conduct of cases and therefore unless there is a grave prejudice, courts do

permit correction of the mistake subject to payment of costs. In this case,


CM(M) 7062014                                                                 Page 2 of 3
 the impugned order awards costs while allowing the recall of the witness. I

hence do not find any illegality in the impugned order.


6.    Powers under Article 227 of the Constitution of India are not

exercised in a routined manner, because not only they are extraordinary

powers, but also because they are discretionary powers and which are to be

invoked in furtherance of justice and not to frustrate justice. Impugned order

causes justice and therefore to set aside such an order powers under Article

227 of the Constitution of India cannot be invoked.

             Dismissed.




JULY 28, 2014                                 VALMIKI J. MEHTA, J.

ib