Sardar Raghubir Singh vs Smt. Bala Devi & Ors.
2014 Latest Caselaw 4870 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CM(M) No. 897/2014 & CM No. 16250/2014(stay)


%                                               26th September , 2014

SARDAR RAGHUBIR SINGH                               ......Petitioner
                 Through:                Mr. Manu Nayyar and Ms. Stuti Sood,
                                         Advocates.


                            VERSUS

SMT. BALA DEVI & ORS.                                  ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. It is not surprising for the defendants in the suits for possession

to use every tactic to somehow or the other keep on delaying the disposal of

the suit for possession. The petitioner is one such defendant.

2. In the present case, at the late stage of defendant's evidence, the

petitioner /defendant moved an application for amendment which was

dismissed by the trial court but a learned Single Judge of this Court vide

order dated 30.4.2014 in CM(M) No. 289/2014 allowed the amendment.

However, simultaneously, it was recorded by this Court in CM(M) No.

289/2014 that the petitioner/defendant would complete his evidence in the

next three weeks and the entire evidence will be completed by the end of

August, 2014 and the suit will be disposed of within four months thereafter.

3. The grievance of the petitioner is that one witness Sh. Surender

Kumar from the Land and Revenue Department who had appeared as DW-3

appeared again as DW-10 and in his cross-examination while appearing as

DW-10 he has stated that there is a discrepancy in the demarcation report

exhibited as Ex.DW 2/5 prepared by one Kanoongo Sh. M.S.Jhakar with

another demarcation report Ex.DW7/1 prepared by M/s N.K.Engineering for

the petitioner/defendant, and therefore, petitioner/defendant pleads that he

needs to call Mr. M.S. Jhakar who has prepared the demarcation report

Ex.DW2/5 to explain the discrepancy between his report and that report

prepared by his other witness DW-7 from M/s N.K.Engineering. It is this

application for summoning of Mr. M.S.Jhakar which has been dismissed by

the trial court and this order is impugned in this petition under Article 227 of

the Constitution of India. The relevant observations of the trial court in the

impugned order dated 8.9.2014 for dismissing the impugned application read

as under:-

"On perusal of the record it is made out that Sh. Surender Kumar, Kanoongo, DC-West was examined as DW3 and later also as DW 10. The said witness Sh. Surender Kumar appeared on two occasions with respect to the different set of record summoned by the defendant from the office of DC-West. The witness DW 7 from the private agency M/s N.K.Engineering was also examined with respect to the demarcation carried out of Khasra no. 106 of village Khampur raya. These witnesses have already placed on record the demarcation report, khatima field book and site plans. The oblique lines/stripes in the site plan have been explained by witness DW 7 from M/s. N.K.Engineering which is allegedly remained unexplained by Sh. Surender Kumar. The unacquired and acquired areas are part of the award nos. 1606 & 1606 A(supplementary) which are already on record. It is manifest to note here that Sh. Surender Kumar is a government/summoned witness who was to bring only the summoned record and he is not to prove the contents of the documents. DW3/DW 10 has brought the record summoned by the defendant. Mr. M.S.Jhakar or Mr. Manjeet Singh or any other record keeper/kanungoo would have also brought the same record and will also depose on the basis of the demarcation report, khatima field book, award nos. 1606&1606 A (supplementary) and site plans, which are already on record. As is admitted in the present application by the defendant that the site plan Ex.DW2/5 has already been stated to be not a part of the record maintained by the office of DC West with respect to the Khasra No. 106, Khampur Raiya. Therefore, Sh. Manjit Singh and M.S.Jhakar even if summoned will not served any purpose.

This is not the stage to appreciate evidence and thus submissions of the defendant with respect to evidence led and Ex.DW2/3 shall be considered at the appropriate stage.

As regard the defendant the order dt. 30-4-2014 of the Hon'ble High Court of Delhi is clear that the parties were to conclude their evidence by the end of August, 2014. On 30-08- 2014 the defendant did not appear for his cross-examination nor his affidavit for leading additional evidence was placed on record, although advance copy was supplied to the plaintiff.

The order dt. 30-08-2014 clearly reveals the situation and the reasons for closing of defendant evidence. Order dt. 29-08- 2014 passed by Hon'ble High Court of Delhi does not in any way modify the earlier order dt. 30-04-2014 of the Hon'ble High Court of Delhi. No ground is made out for allowing the defendant to lead evidence qua defendant/DW1 with respect to additional evidence allowed vide order dt. 13-08-2014 of this court.

In view of the foregoing discussion, the application is hereby dismissed.

This is a time bound case in terms of order dated 30/4/2014 passed by the Hon'ble Delhi High Court. The defendant is on one pretext or the other buying time and delaying the proceedings in this case despite the knowledge of the order dated 30/4/2014 passed by the Hon'ble Delhi High Court." (underlining added)

4. It is clear from the arguments urged on behalf of the petitioner as also

the aforesaid observations that Mr. M.S. Jhakar is only being summoned qua

his demarcation report, and only in order to explain the discrepancy between

his report and the report Ex.DW7/1 prepared by another witness on behalf of

petitioner/defendant DW-7/ M/s N.K.Engineering. Obviously, the prayer

was misconceived because Sh. M.S. Jhakar can depose only with respect to

his own report and there is no dispute raised by the respondents/plaintiffs

with respect to whatever is stated in the report of Sh. M.S. Jhakar. Sh. M.S.

Jhakar obviously cannot orally add to what is already stated in his

demarcation report and the trial court has rightly held that the stage of

appreciation of evidence, ie whether Ex. DW2/5 is correct or Ex.DW7/1 is

correct and related aspects, has not yet come and will come at the stage of

final arguments. If any other witness of the petitioner/defendant, DW-7 M/s

N.K.Engineering has given a different/ separate report then whatever is the

consequence in law will follow, however, a witness namely Kanoongo

Mr.M.S.Jakhar cannot be allowed to be called because no purpose would be

served inasmuch as, the witness cannot add anything orally as to his own

report, and surely he would not be competent to depose about the

demarcation report given by another witness DW-7 M/s N.K.Engineering.

5. It is obvious therefore that petitioner/defendant wants to keep on

unnecessarily delaying the disposal of the suit for possession with respect to

which there are time bound directions for disposal of this Court in CM

289/2014 on 30.4.2014.

6. There is another prayer made in this petition for additional evidence to

be led of the petitioner which has been rejected vide order dated 30.8.2014,

and which prayer is also misconceived. The prayer is unjustified firstly

because one petition cannot be filed against two totally separate orders dated

8.9.2014 and 30.8.2014. Secondly in the interest of justice when the order

dated 30.8.2014 is examined and by which the right of the

petitioner/defendant to file additional affidavit in evidence was closed it is

found that there can be no legitimate grievance to the same as the petitioner

continuously did not file his affidavit for additional evidence and did not

even appear in Court. The relevant portion of this order dated 30.8.2014

reads as under:-

"As per previous order sheets case was fixed today for entire DE in terms of order dated 30-4-13 passed by the Hon'ble High Court of Delhi. The defendant who was to appear as a witness on the additional affidavit has not appeared in the court and even the additional affidavit in evidence of the defendant have not been placed on record. No other witness is present in the court. No application for summoning of witness except the application filed on 26-08-14, which was dismissed, is filed by the defendant. Order dated 29-08-14 has not been placed on record and the copy of the revision petition has not been filed by the defendant for the assistance of the court. As on date it is not in the knowledge of the court as well as counsel for parties if the order dated 30-04-14 of the Hon'ble High Court of Delhi has been modified vide order dated 29-08-14 nokr the same has been pleaded by the defendant. Vide order dated 30-04-14 it was directed by the Hon'ble high court of Delhli that the recording of evidence in the present case shall preferably be completed by the end of August 2014. In view of the aforesaid the evidence of the defendant in terms of directions of Hon'ble High Court of Delhi stands closed. However, if in the order dated 29-0814 passed by Hon'ble High Court of Delhi there is any directions to the contrary, the defendant is at liberty to move appropriate application against closing of DE after placing on record the order dated 29-08-14.

Put up on 02-09-2014 for placing on record the order dated 29- 08-2014 by the defendant as well as for further proceedings."

(underlining added)

7. A reading of the aforesaid portion of the impugned order dated

30.8.2014 makes it clear that no additional affidavit was filed on behalf of

the petitioner/defendant in spite of the matter being fixed for the entire

remaining evidence of the defendant/petitioner, and therefore, the court was

forced to close the evidence of the petitioner/defendant.

Petitioner/defendant cannot keep on playing games of hide and seek with the

court and keep on delaying matters especially in a suit for possession where

there are time bound directions for disposal. Also, since additional affidavit

is sought to be filed of the petitioner/defendant as stated before me, only

with respect to the demarcation report, I note that serious prejudice will not

be caused to the petitioner/defendant by not taking the additional evidence

because on the aspect of demarcation evidence has already been led on

behalf of the petitioner/defendant viz DW-2, DW-3 and DW-7, and no

purpose will be served by duplicating the evidence which exists on record

with respect to the demarcation report or allowing such evidence which has

really to do with appreciation of two demarcation reports, Ex.DW2/5 and

Ex.DW7/1, which are on record.

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

extraordinary and discretionary powers. These extraordinary and

discretionary powers are not meant to be exercised in cases such as the

present, when it is clear that no parol evidence can be given with respect to

contents of any documents, besides the fact that to explain every question

and answer in a cross-examination and every discrepancy which arises, one

witness after another cannot be summoned for alleged 'çlarification'.

9. Dismissed. Copy of this judgment be sent to the trial court by special

messenger.

SEPTEMBER 26, 2014                          VALMIKI J. MEHTA, J.
ib