Delhi High Court
Ravinder Singh & Anr. vs Naresh Kukreja on 20 March, 2017
$R-1A & R-1 (Part A)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decision on : 20th March, 2017
+ CS (COMM) 21/2016
RAVINDER SINGH & ANR. ..... Plaintiffs
Through: Nemo.
versus
NARESH KUKREJA ..... Defendants
Through: Nemo.
+ CS (COMM) 22/2016
RAVINDER SINGH & ANR. ..... Plaintiffs
Through: Nemo.
versus
MANOJ KUMAR PRUTHI & ANR. ..... Defendants
Through: Mr. Akhil Sibal, Mr. Sanjay S.
Chhabra, Mr. Vijay Laxmi &
Mr. Pradeep Chhindra, Advs.
for D-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER
1. These two suits filed by the same set of plaintiffs, one after the
other, in respect of the same subject property it being shop bearing No.
6A , Khan Market, New Delhi were consolidated for purposes of trial
by common order dated 11.05.2009. It may be noted that Naresh
Kukreja one of the two defendants in the second suit i.e. CS (Comm)
22/216 was the sole defendant in the first suit, he having been
described as the owner of the subject property, the other defendant in
the second suit i.e. Manoj Kumar Pruthi (the first defendant) in the
second suit being the subsequent purchaser. The subsequent purchaser
had contested the suit, inter alia, on the plea that the suits were based
on false averments and that the litigation was vexatious. In the first
suit, the plaintiffs prayed for specific performance of Agreement to
Sell dated 15.9.2005 also seeking mandatory injunction to the effect of
a direction to the owner to execute sale deed pursuant thereto. The
second suit was instituted in the face of alleged discovery of fact by
the plaintiffs about the owner having entered into Agreement to Sell
dated 3.12.2008 in favour of the subsequent purchaser, the prime
prayer made therein being for declaration that the said Agreement to
Sell dated 3.12.2008 (duly registered with the Sub-Registrar on
4.12.2008) was null and void and inoperative, this in addition to a
decree of permanent injunction to restrain the owner from selling,
alienating or parting with the possession or creating any third party
rights in respect of the subject property.
2. The issues were framed, common to both the suits by order
dated 11.5.2009 whereafter the plaintiffs were called upon to lead
evidence, the prime onus in respect of all material issues (except issue
no.4) being that of the plaintiffs. The record would show that the first
plaintiff appeared as PW-1 on the strength of his affidavit, and was
subjected to part cross-examination for and on behalf of the owner
(second defendant in the second suit and the sole defendant in the first
suit) on some of the dates, lastly on 09.09.2014. Thereafter the first
plaintiff (as PW-1) played truant and would not appear inspite of
several opportunities being given for the purpose, such conduct
eventually resulting in right to lead evidence for and on behalf of the
plaintiffs being closed by order dated 02.02.2015. It also needs to be
noted that after closing the opportunity for the plaintiffs to lead
evidence, the Joint Registrar granted some opportunity to the
defendants to lead evidence though no witness having been examined
by the defendants, it having been submitted eventually on 06.01.2016
that the defendants did not wish to adduce any evidence. By order
passed on the said date, the Court directed the case to be put in the
category of „Finals‟ to be taken up on its own turn.
3. The matters came up for final hearing on 29.02.2016, but none
appeared for either side. These cases again came up for final hearing
on 06.03.2017 but only the first defendant was represented. Since the
plaintiffs were not present, the Court considered it proper for Court
notices to be issued to the plaintiffs and their counsel for today. The
office report shows that the counsel for the plaintiffs and the first
plaintiff himself have been duly served with the court notice on
10.03.2017.
4. These cases were called out today against the above-noted
backdrop in the post lunch session. With the assistance of learned
counsel appearing for the first defendant in the second suit, the
background facts have been taken note of. No one has appeared for
the plaintiffs till 3.45 p.m. In these circumstances, there is no good
ground to adjourn the matters again or to keep them alive further. It is
clear the plaintiffs have lost interest in this litigation and have virtually
abandoned the pursuit of the remedies which were sought through the
cases at hand. The learned counsel for the first defendant in the
second suit fairly concedes that in these facts and circumstances the
only course available to the court is to apply the statutory prescription
in Rule 8 of Order 9 of the Code of Civil Procedure, 1908 (CPC),
inasmuch as the statement of PW-1 cannot be treated as "evidence"
within the meaning of Rule 2 of Order 17 CPC, the full right of cross-
examination of such witness not having been afforded.
5. Since there are no admissions, not even of the part of the claim
of the plaintiffs by the defendants, there is no case made out for any of
the reliefs being granted to the plaintiffs.
6. Since the plaintiffs have chosen not to appear, the suits are
dismissed given the conduct with costs quantified at Rs. 5 lakhs in
favour of each defendant in the second suit, the costs, thus awarded in
favour of the second defendant in the said second suit also covering
the costs incurred by that party even in the first suit.
(R.K. GAUBA)
JUDGE
March 20, 2017
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