Delhi High Court
M/S. Salsons Impex Pvt. Ltd. vs Smt. Suruchi Bhardwaj on 15 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.845/2014
% 15th September, 2014
M/S. SALSONS IMPEX PVT. LTD. ......Petitioner
Through: Mr. Vivek Singh, Advocate.
VERSUS
SMT. SURUCHI BHARDWAJ ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.15181/2014 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
+ C.M.(M) No.845/2014 and C.M. No.15180/2014 (stay)
2. This petition under Article 227 of the Constitution of India is
filed by the petitioner/defendant/tenant impugning the orders of the trial
court dated 13.8.2014 and 2.9.2014 by which the right of the
petitioner/defendant to cross-examine the PW-1 was closed and the order
dated 13.8.2014 closing right of the petitioner/defendant to cross-examine
the PW-1 was not recalled. The present case is a symptomatic of those
litigants who unnecessarily drag on cases of landlords, such as the
respondent in the present case, with respect to the claim for damages/mesne
profits pertaining to the tenanted premises.
3. A reading of the impugned order shows that the
petitioner/defendant took repeated opportunities, i.e four in number, and still
failed to complete the cross-examine of PW-1. Cross-examination was done
on two dates and which in my opinion should have been sufficient in a suit
like this where the issue only of damages remain and qua which issue in any
case the petitioner/defendant will lead its evidence pertaining to the rate of
rent prevailing in the area for determining the mesne profits. The
petitioner/defendant not only unnecessarily took adjournments, and in fact
when the trial court fixed two specific dates at specific timings, even those
opportunities were not availed of. Trial court therefore was forced to close
the right of the petitioner/defendant to cross-examine PW-1.
4. I may state that PW-1 has been substantially cross-examined
and was only to be further cross-examined and thus surely the issue of
damages would be looked into as per the entire evidence which is led in this
case including that of the petitioner/defendant, and non cross-examination
will be only one of the aspects which will be seen in the case alongwith
other aspects. Impugned order shows the gross malafides of the
petitioner/defendant in not utilizing opportunities for cross-examination, as
also the fact that different Advocates appeared at different points of time and
applications for recalling of the order dated 13.8.2014 was filed by an
Advocate whose Vakalatnama also did not appear on record. The relevant
observations in the impugned order read as under:-
"Perusal of the record shows that issues were framed in the
present case on 12.09.2013. Affidavit of PW1 was also filed on same
day on behalf of plaintiff and a copy was also supplied to Ld.
Counsel for the defendant. On 18.11.2013, PW1 tendered his
affidavit in evidence. The cross-examination of the witness was,
however, deferred at request of the defendant. An opportunity was
granted to the defendant to cross-examine PW1 subject to cost of Rs.
1000/-. On 15.01.2014, neither was the cost paid nor was the witness
cross examined by the defendant. Rather an adjournment was sought
by the proxy counsel for the defendant on the ground that the main
counsel was busy in some other Court. It was only on 10.05.2014
that cost was paid by the defendant and PW1 was partly cross-
examined by the Ld. Counsel for the defendant. The witness was
further cross-examined on 17.05.2014. However, the perusal of order
sheets shows that on both these occasions, the Advocates who were
present on behalf of defendant to cross-examine PW1 were Sh.
Aditya/Adilya Gaggar and Sh. Manish Kaushik. On 17.05.2014, Sh.
Aditya Gaggar for the defendant appeared as a proxy counsel for the
defendant and submitted that he had the instructions of the main
counsel for the defendant as well as defendant to cross-examine the
witness. On this date, it was directed that the remaining cross-
examination of PW1 shall be conducted on 24.07.2014 at 11.00 AM.
On 24.07.2014, again a proxy counsel, namely, Sh. Pankaj Arora for
the defendant appeared who submitted that the main counsel was
busy in Hon'ble High Court of Delhi and would not be able to appear
before 12.30 PM. The proxy counsel for the defendant was not sure
whether or not the main counsel would appear in the Court even after
12.30 PM. In these circumstances and at request for proxy counsel
for the defendant, a time was also fixed for further cross-examination
of PW1 on the next date of hearing. The case was, accordingly, listed
for 13.08.2014 at 11.30 AM. It was categorically directed that in case
Ld. Counsel for the defendant is not present on next date of hearing
at the time fixed, opportunity of the defendant to further cross-
examine PW1 shall be closed.
On 13.08.2014, matter was taken up at 11.30 AM and till 11.45 AM
Ld. Counsel for the defendant was not present to cross examine
the PW1. Instead another proxy counsel, namely, Sh. Kunal Sharma
for defendant appeared. In these circumstances, the opportunity of
defendant to cross-examine PW1 was directed to be closed.
In the application U/sec. 151 CPC, it is submitted that the main
counsel for the defendant, namely, Sh. Dhruv Gupta appeared at
12.20 PM on 13.08.2014 to cross-examine the PW1. The application
U/sec. 151 CPC has been filed by Sh. Dhruv Gupta, Advocate under
his signatures with his supporting affidavit. It has been clarified
during arguments by Ld. Counsel for defendant Sh. Dhruv Gupta that
he himself is the main counsel for the defendant. Vakalatnama filed
on behalf of the defendant on 24.01.2013 shows that even though the
names of 10 Advocates have been mentioned in the Vakalatnama
including that of Sh. Dhruv Gupta, it has been signed only by Sh.
Khattar, Advocate. Sh. Dhruv Gupta is, therefore, not the main
counsel authorised to represent the defendant in the present case. He
is at best a proxy counsel. There is also nothing to show that Sh.
Dhruv Gupta had the authority of the defendant to move the
application under consideration on its behalf. During the course of
arguments, it has been conceded that the Advocate who signed
Vakalatnama for defendant, namely, Sh. Vishal Khattar is no longer
representing the defendant in the present suit and is not part of the
group of Advocates mentioned in the above said Vakalatnama.
Such a conduct as detailed above does not inspire the confidence of
the Court. The Court is also convinced that sufficient opportunities
have already been granted to the defendant to cross examine the
PW1. In view of the above discussion, the application U/sec. 151
CPC of the defendant is dismissed."
5. In view of the above, I do not find any illegality in the
impugned order dated 13.8.2014. The trial court was justified in not
recalling the order dated 13.8.2014 closing right of the petitioner/defendant
to continue the cross-examination of PW-1.
6. Dismissed.
SEPTEMBER 15, 2014 VALMIKI J. MEHTA, J
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