Delhi High Court
Rakesh Kumar Sachdeva vs Prem Arora on 22 July, 2015
Author: Sanjeev Sachdeva
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 17th July, 2015
Judgment Delivered on: 22nd July, 2015
+ FAO(OS) 371/2015
RAKESH KUMAR SACHDEVA .....APPELLANT
VERSUS
PREM ARORA ....RESPONDENT
Advocates who appeared in this case:
For the Appellants: Mr. A.K. Trivedi, advocate
For the Respondent: Mr. Sajan K. Singh, Advocate
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J
Cav. 702/2015
Since the caveator had entered appearance, the caveat is
discharged.
C.M. No. 12288/2015 (Application for exemption)
Exemption is allowed, subject to just exception.
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FAO (OS) 371/2015
1. This appeal arises out of order dated 15.04.2015 passed by a
learned single judge of this court dismissing O.A. No. 128 of 2015
filed by the appellant. By the O.A., the appellant had impugned the
order dated 09.02.2015 passed by the Joint Registrar closing the right
of the appellant/Plaintiff to lead evidence.
2. On 09.02.2015, the case was listed for further cross-
examination of the PW-1. (The Plaintiff in the suit and appellant
herein). The Joint Registrar noted that the PW-1 was not present. The
counsel for the plaintiff had submitted that the plaintiff had taken
away the file and he was not in contact. The counsel for the plaintiff
had submitted that he intended to seek discharge. The Joint Registrar
noted from the previous order sheets that PW-1 was not present on
previous dates of hearing also and accordingly the plaintiff's evidence
was closed.
3. As is borne out from the impugned order, the Learned counsel
for the appellant before the learned single judge in the appeal
contended that the appellant did not appear before the joint registrar as
he was in a state of shock as his mother had expired on 02nd January
2015.
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4. The Learned single judge noted that the counsel for the plaintiff
had made a statement that the plaintiff had taken away his file. The
single judge noted that the issues were framed on 26th September 2012
and the evidence of the plaintiff was partly recorded on 07 th August
2013 and thereafter on one pretext or the other, the statement of PW-1
had not been concluded.
5. The learned single judge formed an opinion that there was an
inordinate delay on the part of the plaintiff and it seems to be a part of
the strategy to delay the disposal of the suit.
6. Normally a court is reluctant to pass orders shutting out the
parties from leading evidence, however on some occasions the facts
and conduct of a party force the hands of the court.
7. Present is a suit filed by the Appellant/plaintiff in the year 2011
for specific performance of an agreement to sell allegedly executed by
the Defendant/Respondent. On 26.09.2012, the court directed that
subject to the plaintiff furnishing a bank guarantee of Rs. 48,61,000/-
within four weeks, the parties shall maintain status quo with respect to
tile and possession of the suit property. The issues in the suit were
also framed on the said date.
8. On 23.11.2012, as the plaintiff had failed to file the list of
witnesses or the evidence by way of affidavit, an opportunity was
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granted subject to payment of costs of Rs. 3,000/-. The Joint Registrar
also noted that the bank guarantee was also not furnished. Counsel or
the plaintiff submitted that the same would be furnished with an
appropriate application.
9. The Plaintiff who entered the witness box as PW-1 was partly
cross-examined on 07.08.2013. The plaintiff was directed to produce
his income tax returns and statement of his bank account with effect
from 2009. As noted by the learned single judge in the impugned
order, thereafter on one pretext or the other the statement of PW-1 has
not been concluded. PW-1 was not present on 26.05.2014, 03.11.2014
and on 09.02.2015.
10. Learned counsel for the appellant/plaintiff has admitted that the
bank guarantee in the sum of Rs. 48,61,000/-, which was a pre -
condition imposed for grant of a status quo order on 26.09.2012 was
not furnished within the stipulated time and even till date has not been
furnished.
11. We concur with the finding returned by the learned single judge
that there is inordinate delay on the part of the plaintiff and it seems a
part of the strategy to delay the disposal of the suit. Mere pendency of
litigation in respect of a property diminishes its value, even though
there may not be an interim order. A pending litigation in respect of a
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property is a deterrent on prospective purchasers. Even if there were
no interim order, lis pendens by itself would create a cloud over the
title in the minds of the prospective purchasers and would diminish
the value of the property. The plaintiff is clearly attempting to take
advantage of this situation, which cannot be permitted.
12. In view of the above, we find no merit in the appeal, the same is
dismissed with costs quantified at Rs. 10,000/-.
CM 12287/2015 (Application for stay) & CM 12289/2015
(Application for condonation of delay of 26 days in filing the
appeal).
Since we have considered and dismissed the appeal on merits,
no orders are called for in these applications, the same are accordingly
dismissed.
SANJEEV SACHDEVA, J.
JULY 22, 2015 BADAR DURREZ AHMED, J.
HJ
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