Sh.D.C. Thakur vs Sh.Shyam Sunder Chadha
2014 Latest Caselaw 5423 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+      C.M.(M) No.964/2014 & C.M.Nos.17728/2014 (Stay), 17729/2014
       (Exemption)

%                                                          31th October, 2014

SH.D.C. THAKUR                                                ..... Petitioner
                          Through        Mr.C.S.Rathour, Advocate.

                          versus

SH.SHYAM SUNDER CHADHA                                        ..... Respondent

Through CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Challenge by means of this petition under Article 227 of the

Constitution of India is to the impugned order of the trial court dated

05.9.2014 rejecting an application of the petitioner/plaintiff to lead further

evidence. The subject suit is a suit for specific performance for a

prospective industrial plot of 400 sq. yds. to be allotted to the

respondent/defendant. The petitioner/plaintiff relies upon the two

documents dated 28.12.1996 and 30.12.1996 to allege that the petitioner has

an agreement to sell of the suit property with the respondent/defendant. The

petitioner I may note is an Advocate.

2. A reading of the impugned order shows that the petitioner/plaintiff has

had more than enough opportunities to lead his evidence, led his evidence

and thereafter his evidence was closed. The respondent/defendant thereafter

also commenced his evidence. It is at that stage that the subject application

was filed for leading evidence only on the ground that the earlier Advocate

was "incompetent", though this specific expression is not used.

3. In my opinion, self-serving bald averments making the allegation

against the earlier Advocate that the earlier Advocate did not know the law,

and therefore he did not lead the evidence, is no reason in the eyes of law to

permit the petitioner/plaintiff to lead additional evidence after the evidence

has already been completed over many dates of hearing. Also the

petitioner/plaintiff himself being an Advocate, though practicing in the

income-tax side, cannot say that he is not aware of the basic procedures

required in law for proof of various aspects.

4. I may also note one aspect that is very curious that except the two

documents stated above, the petitioner has no proof whatsoever that any

agreement to sell was ever entered into or acted upon and any money was

paid by the petitioner to the respondent.

5. At the conclusion of the hearing, I put it to the counsel for the

petitioner whether he wants to take the benefit of Section 105 Code of Civil

Procedure, 1908 (CPC) and to which counsel for the petitioner states that he

wants a judgment from this Court on merits.

6. Powers under Article 227 of the Constitution of India are

extraordinary and discretionary powers, and which are meant not to be

exercised in a routine manner, more so in cases such as the present where a

person has had more than enough opportunities to prove his case.

7. Counsel for the petitioner places reliance upon the judgment of the

Supreme Court in the case of M/s Bagai Construction through its

Proprietor Mr.Lalit Bagai Vs. M/s Gupta Building Material Store, Civil

Appeal no. 1787/2013 decided on 22.2.2013, however reference to this

judgment shows that exercise of discretionary jurisdiction depends upon the

facts of each case, and this judgment does not lay down the ratio that in

every case additional evidence should also be allowed after the evidence is

closed.

8. Dismissed.

VALMIKI J. MEHTA, J OCTOBER 31, 2014 KA