Kiran Aggarwal vs Jawahar Lal Aggarwal & Anr
2015 Latest Caselaw 3620 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 CS(OS) 2791/2011

                                                Decided on 05.05.2015
IN THE MATTER OF:
KIRAN AGGARWAL                                ..... Plaintiff
                        Through: Mr. Sanjay Sehgal, Advocate with
                        Ms. Lenin Manocha, Advocate

                        versus

JAWAHAR LAL AGGARWAL & ANR              ..... Defendants
                  Through: Mr. Tushar Singh, Advocate


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

O.A. 174/2015 (Chamber Appeal by the defendants against the order dated 12.01.2015 passed by the Joint Registrar) and I.A. 9407/2015 (for condonation of delay in filing the Chamber Appeal)

1. The appellants/defendants have filed the present Chamber

Appeal against the order dated 12.01.2015, passed by the learned

Joint Registrar, whereunder the right of the defendants to lead the

evidence was closed.

2. Before considering the submissions of the counsels for the

parties, it is necessary to recapitulate the relevant sequence of events

in the suit.

3. After the pleadings were completed, issues were framed in the

suit on 30.11.2012. On the said date, the parties were directed to file

their list of witnesses within four weeks and the plaintiff was directed

to file the affidavits by way of evidence within six weeks thereafter.

Further, the parties were directed to appear before the learned Joint

Registrar on 31.01.2013, for cross-examination of the plaintiff's

witnesses. The plaintiff had led her evidence, which was closed in the

affirmative on 12.08.2013 and on the said date, the defendants were

directed to adduce their evidence on 02.12.2013 and in the meantime,

they were directed to file their chief affidavits within four weeks.

4. The defendants filed their list of witnesses containing four

witnesses, namely, the defendants No.1 and 2 and their son and the

daughter-in-law. The chief affidavits of the four witnesses were filed,

but the defendants did not turn up before the learned Joint Registrar

on 02.12.2013. On the said date, at the request of the counsel for the

defendants, the case was adjourned to 17.04.2014, for recording the

defendants' evidence. On 17.04.2014, the Joint Registrar was on leave

and the case was adjourned to 29.05.2014.

5. On 29.05.2014, it was noticed that none of the defendants'

witnesses were present and the counsel for the defendants had sought

an adjournment on the ground that the arguing counsel was

indisposed. In the interest of justice, last and final opportunity was

granted to the defendants to lead their evidence, failing which it was

made clear that their right to lead the evidence shall stand closed.

With these directions, the case was adjourned to 04.09.2014.

6. On 04.09.2014, yet again, the defendants' witnesses did not

turn up. Counsel for the defendants sought to explain the absence of

DW-1 by stating that he was confined to bed at Bangalore. Further, as

both the parties had sought intervention through mediation, the case

was referred to the Delhi High Court Mediation and Conciliation Centre

and the defendants' evidence was adjourned to 12.01.2015. The

parties were unable to negotiate a settlement before the Mediation

Centre. On 12.01.2015, yet again, the defendants failed to turn up for

their cross-examination. As a result, their right to lead the evidence

was closed by the learned Joint Registrar.

7. Counsel for the defendants states that the defendants No.1 and

2 are senior citizens and the defendant No.1 had suffered a heart

attack on 04.12.2014 whereafter, he had to undergo a surgery. He

states that the defendant No.2(wife of defendant No.1) has been busy

attending to the defendant No.1 and they have been residing with

their son and daughter-in-law at Bangalore. He submits that the

absence of the defendant No.2 and third witness, i.e., the son of the

defendants was bonafide and adds on instructions, that now the

defendants wish to confine the evidence to the deposition of Mr.

Sameer Aggarwal (DW-3) alone and if one more opportunity is granted

for the said purpose, the defendants shall ensure that the said witness

is present on the date that may be fixed by the Joint Registrar for his

cross-examination.

8. Counsel for the plaintiff states that if the Court is inclined to

allow the present Chamber Appeal and the application for condonation

of delay, then the defendants must be mulcted with costs for delaying

the proceedings in the suit for almost two years. He submits that the

plaintiff has instituted the accompanying suit for specific performance

of an Agreement to Sell dated 17.01.2011 in respect of an immovable

property and the total agreed sale consideration was `50 lacs, out of

which, the plaintiff had paid a substantial amount of `35 lacs towards

part consideration, and the balance amount was deposited in Court in

terms of the order dated 15.11.2011. As a result, he plaintiff is out of

pocket of a huge amount and at the same time, the defendants have

been dragging their feet in the suit only to frustrate her genuine claim.

9. Having regard to the submissions made by the counsel for the

parties and taking into consideration the explanation offered by the

counsel for the defendants, the delay of 61 days in filing the Chamber

Appeal is condoned and the appeal is allowed. Subject to costs of

`20,000/- to be paid to the plaintiff through counsel on or before the

date fixed before the Joint Registrar, last and final opportunity is

granted to the defendants to produce DW-3 for his cross-examination

on a date and time that shall be fixed by the learned Joint Registrar. It

is made clear that if the witness does not turn up on the date fixed,

then the order dated 12.01.2015 shall stand revived.

10. The Chamber Appeal and the application are disposed of.

                                                     (HIMA KOHLI)
MAY 05, 2015                                            JUDGE
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