Delhi High Court
Scindia Potteries & Services P ... vs Jk Jain & Anr on 23 March, 2015
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 23.03.2015
+ CS(OS) No.1311 of 2001
SCINDIA POTTERIES & SERVICES P LTD. ..... Plaintiff
Through: Mr. Ajay Kapur, Sr. Adv. with
Mr. Harshbir Singh Kohli, Adv.
versus
JK JAIN & ANR ..... Defendants
Through: Mr. Sanjiv Kakra & Mr. Irfan Ahmed,
Advs. for D-1.
CORAM:
HON‟BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Open Court)
OA No.67/2013
1.
The present Original Appeal impugns the order of the learned Joint
Registrar (JR) dated 16.3.2013 passed in IA No.3750/2013 whereby the
defendants‟/appellants‟ request for amending the list of witnesses so as to
lead the evidence pertaining to late Rajmata Vijaya Raje Scindia (hereinafter
referred to as „Mrs. Scindia‟) was rejected. The reasons for rejection was
that learned JR was not convinced that despite due diligence, defendant No.1
could not have named the said two record clerks in the list of witnesses;
rather the record would reflect that defendant/appellant was never diligent;
that the application had been brought with the oblique purpose of somehow
protracting the trial and ensuring that the same is not
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concluded within the time limit thrice set by the Hon‟ble Single Judge of
this court and to that extent it is abuse of process. While arriving at the
aforesaid conclusion, the learned JR considered the following arguments:
"5. During arguments, learned senior counsel for defendant
No.1 reiterated the above circumstances and submitted that it is
only to prove the pleaded defence that the two additional
witnesses are sought to be summoned; that the said additional
witnesses would establish that owing to impairment of her
cognitive faculties, Rajmata could not have participated in any
board meeting and could not have executed a Will which is
propounded by the plaintiff. Learned senior counsel for
defendant No.1 contended that the only issue to be kept in mind
is the relevance and once it is established that the evidence
sought to be adduced through the additional witness is relevant,
the court ought not shut the doors on the applicant. Learned
senior counsel for defendant No.1 also contended that
procedural law being only handmaid of justice, so long as the
trial is open, the court ought to allow the additional evidence as
and when the same comes to the knowledge of either side.
During the arguments, learned senior counsel for defendant
No.1 on instructions did not dispute that the witness who
produced the medical records of Rajmata in CS(OS) No. 182/02
was the present applicant‟s own witness and even the learned
trial counsel in both the cases is same. Learned senior counsel
for defendant No.1 also argued that even till date it remains in
the realm of speculation as to whether the original medical
records of Rajmata were preserved by the hospitals or not, so in
the initial stages it was not possible to name these witnesses in
the list. Learned senior counsel for defendant No.1 argued that
there is no undue delay in moving this application also and that
the only test to be applied is as to whether with due diligence
defendant No.1 could have named the said additional witnesses
in the original list or not. Not every delay can be treated as a
dilatory tactic, as per learned senior counsel for defendant No.1.
6. Per contra, learned senior counsel for plaintiff took me
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through the various orders on record of this case to bring home
his point that the only purpose behind this application is to
somehow frustrate the conclusion of trial. Learned senior
counsel for plaintiff sought to establish by referring to the
record that defendant No.1 is deliberately avoiding to step into
the box despite having already examined more than 30
witnesses in support of his case. Learned senior counsel for
plaintiff argued that no new fact has been revealed
subsequently to defendant No.1, as such there is no occasion to
permit amendment of list of witnesses. In addition, learned
senior counsel for plaintiff also sought to rely upon the
documents annexed with the written synopsis reflecting that the
records now sought to be summoned through the additional
witnesses have already been weeded out, which would show
that even if the application is allowed, the entire exercise would
be futile. Learned senior counsel for plaintiff further alleged
that defendant No.1 deliberately kept silent on these hospital
records so that once the records are weeded out, he could
express helplessness in court to prove his case. However, since
those documents were never earlier on record and have been
filed for the first time alongwith the synopsis of submissions on
this application, learned senior counsel for plaintiff in all
fairness did not insist for reliance on the said documents.
Learned senior counsel for plaintiff also argued that there is
absolutely no provision in the Civil Procedure Code,
contemplating any amendment to the list of witnesses.
.... .... .... .... .... ....
14. Plaintiff‟s evidence concluded on 28.05.2010 after
examination of 4 witnesses and vide order dated 03.06.2010,
defendant No.1 was granted liberty to appear in the box
subsequent to the examination of his official witnesses and with
direction to file evidence affidavits within two weeks and the
matter was posted for three evidence dates from16.07.2010 to
20.07.2010; but apparently on account of failure to file
summoning application, on 16.07.2010 the next two dates were
cancelled.
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15. After repeated adjournments and in view of last
opportunity, 66 page chief affidavit of defendant No.1 dated
30.11.2010 was filed on 30.11.2010 but with additional
documents running from page 67 to page 275. As the said
additional documents were tried to be filed without obtaining
any leave, after a few hearings, defendant No.1 filed an
application under Order VIII Rule 1A CPC being IA
3213/2011, which was disposed of vide order dated 22.03.2011
by my predecessor Joint Registrar, declining to take on record
some of those additional documents on the grounds that no
sufficient explanation had been advanced by defendant No.1 for
having failed to file the said documents at appropriate stage.
Order dated 22.03.2011 of my predecessor was upheld by the
Hon‟ble Single Judge in the chamber appeal vide order dated
09.10.2012 and the appeal filed against the said order of the
Hon‟ble Single Judge was disposed of vide order dated
12.02.2013 by the Hon‟ble Division Bench when after
addressing the argument, both the sides agreed that only one of
the additional documents being a trust deed be taken on record.
16. In the meanwhile, 22.11.2011, in the contempt proceedings,
learned counsel for defendant No.1 agreed to ensure that
proceedings would be expedited so far as conclusion of
defendant‟s evidence is concerned and the Hon‟ble Single
Judge directed the Joint Registrar to complete the recording of
evidence within six to nine months. However, thereafter vide
order dated 16.11.2012 on my request the Hon‟ble Single Judge
extended the time to conclude evidence by another three
months with effect from 01.12.2012 and further extended the
said period by another period of three months with effect from
04.02.2013.
17. Till date 31 witnesses have already been examined on
behalf of defendant No.1, though the matter is being taken up
on almost day to day basis subject to also keeping in mind the
convenience of both the learned counsel; not just the learned
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counsel, even defendant No.1 personally has been
accommodated repeatedly to suit his convenience but he has till
date not stepped into the box on one or the other pretext despite
repeated directions as would be reflected from record.
18. As further would be reflected from record, with an effort to
conclude the trial within the repeatedly extended period,
defendant No.1 was also directed to submit a specific schedule
for examination of specific witnesses and even directions were
issued to the registry to ensure dasti summons without defaults
with diet money to be paid in court so that the witnesses could
be examined on day to day basis. But initially defendant No.1
avoided to submit the schedule, as reflected from order dated
12.02.2013 and 13.02.2013 and the schedule submitted further
reflected a deliberate effort to protract the suit, so fresh
schedule was called for and finally submitted on 15.02.2013,
though for one or the other reason even that schedule is not
being strictly adhered to.
19. The purpose behind the above described journey undertaken
by this suit is not merely to reflect the belated action of
defendant No.1 in seeking amendment to the list of witnesses,
but to analyze the gravity of plaintiff‟s argument that defendant
No.1 is for oblique purposes trying his level best to somehow
protract the suit. As also mentioned above, there are umpteen
observations on the judicial ordersheets of this case to the effect
that defendant No.1 is somehow trying to protract the
proceedings. Deliberate efforts to protract the trial per se is
anathema to the due diligence test that would be relevant in the
present case. In this regard, it would also be important to refer
to the decision of Hon‟ble Single Judge in OA 78/2011 vide
order dated 09.10.2012, thereby observing that simply because
it is stated that the documents were archived by defendant No.1
in a library situated in the suit premises does not mean that he
ought not to have shown due diligence of browsing through his
own records for identifying such documents that were
considered relevant to substantiate his defence; the Hon‟ble
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Single Judge after a detailed discussion based on the previous
record in this case came to the conclusion of complete lack of
diligence on the part of defendant No.1. I am not oblivious that
the said observations of the Hon‟ble Single Judge were as
regards the additional documents and not strictly as regards the
issue involved in the present application, but the said order
dated 09.10.2012 of the Hon‟ble Single Judge amply describes
the lack of diligence as well as deliberate efforts of defendant
No.1 to somehow protract the trial, which applies to the present
situation as well.
20. It would also be necessary to examine the issue of due
diligence on the part of defendant No.1 de hors the above
described conduct of defendant No.1 in protracting the trial.
21. In para 9 of the written statement, defendant No.1 described
the alleged ill health of Rajmata followed by her hospitalization
in the intensive care unit of Apollo Hospital, New Delhi.
Further, in para 14 of his chief affidavit, defendant No.1
specifically testified on oath that he was „the personal doctor‟
of Rajmata and explained at length the alleged illness of
Rajmata including her hospitalization in the Apollo hospital as
well as Breach Candy Hospital. This chief affidavit was sworn
by defendant No.1 way back on 30.11.2010. In other words, as
per defendant‟s own statement on oath made in way back in the
month November, 2010, he was always fully aware in details,
that too being the personal doctor of Rajmata about her illness
and hospitalization. I fail to convince myself that at the stage of
filing the list of witnesses way back in the year 2006, defendant
No.1 with due diligence could not have named the record clerks
of Breach Candy and Apollo hospitals in the list of witnesses.
22. Learned senior counsel for defendant No.1 argued that in
the year 2006 it was not clear as to whether the said two
hospitals had preserved the medical records or not and same is
the status today. As per defendant No.1 also, it remains in the
realms of speculation as to whether the said record clerks would
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produce the records or not. In contrast, plaintiff has filed
alongwith the synopsis a letter reflecting that Breach Candy
records have been destroyed. Although, as mentioned above,
the said letter having not been filed earlier ought not be looked
into, but keeping in mind the defendant‟s own stand of
uncertainty as regards availability of records, I find substance in
the submission of learned senior counsel for plaintiff that
allowing defendant No.1 to amend the list of witnesses at this
stage would be an exercise in futility, which cannot be afforded
in view of the fact that conclusion of trial has already over shot
twice the period fixed by the Hon‟ble Single Judge.
23. At the same time, it also remains undisputed that even in
CS(OS) No. 182/02 the alleged medical records were produced
by the present applicant‟s own witness. defendant no.1 /
applicant was under a duty to disclose as to when for the first
time the said records came in his possession or in the
possession of the witness produced by him in order to
substantiate his stand that despite due diligence he could not
seek to produce the relevant evidence by naming the witnesses
now sought to be named in the list of witnesses. It is nobody‟s
case that the witness who produced the Breach Candy Hospital
records in CS (OS) No.182/02 was from the said hospital; as
per both the sides the said records were produced by the
witness who was produced by the present defendant No.1
himself.
24. There can certainly be no dispute to the proposition
advanced by the learned senior counsel for defendant No.1 that
not every delay can be termed a dilatory tactic. But the present
case exhibits much more than mere delay. Had it been
established that at the stage of filing the original list of
witnesses the defendant No.1 was unaware of hospitalization of
Rajmata in Breach Candy and Apollo, it would have been a
case of delay simplicitor and not necessarily a delaying tactic.
Here, as described above, defendant No.1 was always (at least
ever since filing of written statement), fully aware of both the
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phases of hospitalization, but chose to remain silent till fag end
of trial and now realizing that culmination of trial is in sight,
has brought this application. It clearly shows that the present
application is nothing but dilatory tactics."
2. Mr. Kakra, the learned counsel for the appellant submits that the
impugned order revolves around the conduct of the defendant while what
was required to be seen was whether the appellant was prevented, in any
manner, from amending the list of witnesses earlier; that in a collateral suit,
being CS (OS) No.182/2002, the present plaintiff is defendant No.1; that
initially, the list of witnesses did not include the names of persons or
officials from Breach Candy Hospital, Mumbai and Apollo Hospital, New
Delhi; that the reason for the delay in moving the application was that the
appellant was unaware of the existence of the medical records of late Mrs.
Scindia from the aforementioned hospitals; that apropos the aforesaid
records it would be in the fairness of the proceedings and in the interest of
justice that the appellant be allowed to bring the medical records for leading
evidence in present suit also. In support of his contention, the learned
counsel relies upon paras 9 & 10 of the WS, which read as under:
"9. Late Rajmata‟s health worsened in February, 1998 when
she was struck by severe attack of Myasthenia Gravis resulting
into paralysis of all her body muscles. She did not even have
the capacity to breathe on her own and remained on artificial
respiration for months together in Intensive Care Unit of the
Apollo Hospital, New Delhi. the effect of the disease coupled
with the heavy medication, the aging factor and cerebral
dementia, accompanied by Alzheimer disease resulted in her
total loss of capacity to understand or remember anything.
With the passage of time, the late Rajmata‟s health deteriorated
further and her movements got further limited. Late Rajmata
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was mostly confined by her daughters to her residence and/or in
hospital and others were barred from visiting her on the excuse
of her frail condition and failing health.
10. Rajmata‟s friends, advisors, lawyers, auditors of the
Company and political and business associates were not
permitted to interact with the late Rajmata after she came back
from Apollo Hospital after a prolonged stay there. The
explanation was that her health was vulnerable and moreover
she did not recognize anybody or remember anything."
3. The learned counsel for the appellant submits that late Mrs. Scindia‟s
medical condition would need to be examined so as to determine whether
she was capable of taking a rational decision with respect to certain Board
Meetings and the Annual General Meeting. He further submits that if this
appeal is not to be allowed then the appellant be permitted to read the
evidence led in this regard in CS (OS) No.182/2002. This is strongly
objected to by the learned Senior Advocate for the plaintiff on the ground
that the lis is not between the same parties and not apropos the same subject
matter and besides the suit has not yet been conjoined or directed to be tried
together. There is merit in this argument. Therefore, this prayer of the
appellant is untenable. He also submits that this is a crying example of
dilatory tactics and contemptuous conduct of the defendant.
4. Opposing the appeal, Mr. Ajay Kapur, the learned Senior Advocate
for the plaintiff submits that this is nothing but yet another attempt to
protract the proceedings in the suit which is already pending for almost 14
years. He refers to the statement made by defendant No.1 on 15.2.2013
wherein he had clearly stated before the Court that except for the list of
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witnesses mentioned in their schedule they did not wish to examine any
other person. Yet surprisingly three (3) weeks thereafter, an application was
moved on 2.3.2013 seeking to amend the list of witnesses. He submits that
there have been directions by the Court earlier that the evidence shall be
completed in a time bound manner. He refers to the WS of the defendants
filed in July, 2002, wherein it is clearly admitted that in para 9 of the Written
Statement, defendant No.1 described the alleged ill health of late Mr.
Scindia followed by her hospitalization in the Intensive Care Unit of Apollo
Hospital, New Delhi. Furthermore, in para 14 of his affidavit-in-chief,
defendant No.1 specifically testified on oath that he was „the personal
doctor‟ of late Mrs. Scindia and explained at length the alleged illness of late
Mrs. Scindia including her hospitalization in the Apollo hospital, New Delhi
as well as Breach Candy Hospital, Mumbai. The Court notices that this
affidavit was sworn by defendant No.1 on 30.11.2010. In other words, as per
the defendant‟s own statement on oath made in November, 2010, he was
always fully aware about the details of late Mrs. Scindia‟s illness and her
hospitalization, in light of the fact that he was her personal doctor. The
Court is unable to agree, that at the stage of filing the list of witnesses, way
back in the year 2006, the defendant No.1 upon exercising due diligence,
could not have named the record clerks of Breach Candy Hospital and
Apollo Hospital in the list of witnesses.
5. The Court would notice that issues were framed on 16.5.2005. The
defendant sought amendment of the same by filing an application, which
was disposed off on 7.9.2005 with the observation that "no additional issues
need to be framed but the issue framed in respect of the alleged irrevocable
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licence will be decided in the manner as stated above." The issue "Whether
the bequest under Will dated 20.9.1985 executed by (Late) Rajmata Smt.
Vijaya Raje Scindia does not disentitle the plaintiff from seeking the relief of
prohibitory and mandatory injunction?" was abandoned by the defendants.
Hence, the only issues which are to be decided in this case are the twelve
(12) issues framed on 16.5.2005 as well as the observations made on
7.9.2005.
6. The Court also notices that this is the 249th listing of this case. Four
earlier orders have been passed to the effect that the evidence be completed
at the earliest. A list of 38 witnesses had been filed by the appellant of
which 31 witnesses have been examined almost on a day-to-day hearing
before the learned Joint Registrar. The case is almost nearing its completion
for recording of evidence. The appellant knew fully well about the
condition of late Mrs. Scindia and could have easily incorporated in their
defence all such pleadings which they deemed necessary for the purpose of
setting out their case. On 30.10.2014, in the midst of day-to-day examination
of the witnesses, the defendant failed to turn up only on the ground that
some close acquaintance had fallen ill in Mumbai although he was conscious
of the fact that directions had been given from time to time to conclude the
defendant‟s evidence. Nonetheless the defendant was granted another
opportunity to lead evidence. This Court notes that there is no order that the
two suits be clubbed/ conjoined and heard together.
7. There is no merit in the appeal, hence it is dismissed.
CS (OS) No.1311/2001
The parties shall appear before the learned Joint Registrar on the date
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already fixed. The evidence shall be led on a day-to-day basis and every
endeavour shall be made to complete recording of evidence by the ides of
May, 2015.
The Registry will make every endeavour to trace out the record of
CWP No.1295/1988 in terms of this Court‟s order dated 19.7.2013 in the
next four (4) weeks. This shall, however, not come in the way of
completion of evidence by 15.5.2015
MARCH 23, 2015 NAJMI WAZIRI, J.
b'nesh
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