Delhi High Court
Sh. Tota Ram vs Smt. Asha Sharma on 18 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 38/2014
% 18th November, 2014
SH. TOTA RAM ......Petitioner
Through: Petitioner in person.
VERSUS
SMT. ASHA SHARMA ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Petitioner appears in person and again prays for an
adjournment. This case is now coming up for the fourth time for admission,
the earlier dates being 17.1.2014, 28.05.2014 and 17.11.2014. On all these
three dates, the case was adjourned at the request of the petitioner. On the
last date being 17.11.2014, while granting adjournment it was made clear
that no further adjournment shall be granted.
2. In view of the above, request made on behalf of the petitioner
for an adjournment is declined.
CMM 38/2014 Page 1 of 4
3. The present petition under Article 227 of the Constitution of
India impugns the order of the trial court dated 20.11.2013 by which the trial
court had dismissed the application filed by the petitioner under Order XVIII
Rule 17 of the Code of Civil Procedure, 1908 (CPC), respondent before the
court below.
4. Since the impugned order dated 20.11.2013 is a short order, the
same is reproduced as under:-
"20.11.2013
Present: Counsel for the parties.
PW-2 Sh. Kamalkant Khandelwal has been cross
examined and discharged. Previous cost of Rs.600/- paid to the
respondent.
An application U/o 18 Rule 17 r/w Section 151
CPC has been filed on behalf of the respondent for recalling the
PW-1.
It is submitted that the previous counsel had
conducted the cross examination of the PW-1 but due to
reasons best known to him, he did not ask so many relevant
questions even on the quantum of rent inspite of the fact that in
the written statement, it has been categorically submitted that
the rent of the suit premises was Rs.11/- per month, this is very
relevant and important question for the fair and just decision of
the case. In another case titled as Asha Sharma versus Gopal
Dutt, one handwriting expert had taken the photographs of the
admitted signature and disputed signature and filed his report
which are attached with this application. It is further submitted
that Mr. Kamal Kant Khandelwal, PW-2 had filed a false report
at the instance of the petitioner and as such one FIR bearing No.
CMM 38/2014 Page 2 of 4
334/2013, U/Sec. 420, 467, 468, 471, 120-B IPC was registered
against the petitioner and Kamal Sharma (PW-1). It is further
submitted that the case of the petitioner is based upon the
agreement dated 29.06.1992, receipt dated 05.012.1999 and
UPC dated 19.02.1992, which are forged as the respondent has
never signed the same and never entered into the alleged
agreement. It is further submitted that PW-1 is the star witness
of the petitioner and his further cross-examination is necessary
for fair and just trial of the case.
I have heard learned counsel for the applicant/respondent
and perused the record very carefully.
Just because a new counsel is engaged, it can not be a
ground for recalling a witness for his cross examination. Ample
opportunities had been granted to the respondent to cross
examine the witness through counsel of his choice. Thus now
if a new counsel finds that some lacuna are still left in the cross
examination of PW-1, the same can not be allowed to be filled
by way of exercising of powers of the Court U/o 18 Rule 17
CPC. Even otherwise, the defence of the respondent has been
struck off. The main point which the respondent alleges in the
present application and on which the respondent wants to cross
examine the witness, are the points of facts, the respondent even
otherwise, can not be allowed to challenge the facts as his
defence has even struck off. The application being devoid of
merits is dismissed. Ld. Counsel for the petitioner has closed
petitioner's evidence.
Since the defence of the respondent has been struck off,
put up for final arguments on 06/02/2014."
(underlining added)
5. I do not find any illegality whatsoever in the impugned order
because engaging of a new counsel cannot be a ground to recall a witness for
cross-examination and especially to fill up the lacuna left behind. If the
CMM 38/2014 Page 3 of 4
plea of the petitioner is accepted, then there is no reason why on change not
of one counsel, but of various counsels, each counsel can claim that he wants
to cross-examine the witnesses of the other side afresh. In any case, it is
further relevant to note that the defence of the present petitioner has already
been struck off and therefore there does not arise any issue of cross-
examination with respect to a defence which is struck off.
6. In view of the above, there is no merit in the petition and the
same is therefore dismissed, leaving the parties to bear their own costs.
NOVEMBER 18, 2014 VALMIKI J. MEHTA, J.
ib
