Delhi High Court
Shri Keshav Goel & Anr. vs Smt. Suchinta Sahni & Ors. on 27 August, 2018
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th August, 2018.
+ CS (OS) 184/2008
SHRI KESHAV GOEL & ANR. ..... Plaintiffs
Through: Mr. Dinesh Garg and Ms. Rachna
Agrawal, Advocates.
(M:9899007471)
versus
SMT. SUCHINTA SAHNI & ORS. ..... Defendants
Through: Mr. Ravi Kapoor & Ms. Gauri Puri,
Advocates for D-1. (M:9953287414)
Mr. Dhananjay Baijal, Advocate for
Mr. Nikhil Nayyar, Advocate for D-3.
(M:9958667500)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
I.A. 5611/2018 (delay)
1. Delay in filing the OA is condoned. I.A. is disposed of.
O.A. 45/2018
2. The chronology of events in this case highlights the malaise of
repeated adjournments in recordal of oral evidence, especially in case of
outstation & old witnesses who have to make travel arrangements and
repeatedly appear before the Court for their cross examination.
3. The present appeal has been filed challenging the order dated 12th
February, 2018, by which the Joint Registrar has closed the evidence on
behalf of the Defendants. In the appeal the prayer is for permission to recall
the order of the Joint Registrar and permit the cross examination to be
completed.
4. The brief background of the present case is that the Plaintiffs had
entered into an agreement to sell with the Defendant No.2' s father, Mr. J. N.
Sahni on 4th February, 2007, read with supplementary agreement dated 12th
April, 2007. As per the said agreement, the total sale consideration for the
suit property bearing No.59, Ring Road, Lajpat Nagar-III, New Delhi
admeasuring 790 square yards was Rs.17,00,00,000/-. According to the
learned counsel for the Plaintiffs a sum of Rs.4 Crore has been paid as part
sale consideration. The present suit for specific performance has been filed
seeking specific performance of the said agreement.
5. The Plaintiffs have already led evidence in the suit. Defendant No.1
had made a statement on 15th February, 2016 that she did not wish to lead
evidence. Accordingly, Defendant No.2 - Shri Ajay Sahni, was directed to
lead evidence, subject to costs, with the clear condition that he would not get
more than two opportunities to lead evidence and that if Defendant No.2 did
not lead evidence on two occasions, the evidence of Defendant No.2 would
be deemed to be closed. Order dated 15th February, 2016 is extracted herein
below:
"1. Counsel for defendant no. 1 states that defendant
no. 1 does not want to lead evidence. With consent of
the parties, the order of the Joint Registrar dated
18.11.2015 is recalled qua defendant no.2 subject to
three conditions. First condition is that defendant no.2
will pay a sum of Rs.25,000/- as costs to the counsel
for the plaintiffs before the next date of hearing. The
second condition is that defendant no.2 will not get
more than two opportunities to lead evidence and if the
defendant no.2 does not lead evidence in two
opportunities, the evidence of the defendant no.2 will
be deemed to be closed. The third condition is that
defendant no.2 will positively file affidavits by way of
evidence of his witnesses, who have not to be
summoned, within a period of four weeks from today,
failing which right to file affidavits by way of evidence
will be deemed to be closed.
...................."
6. On 29th April, 2016, the costs were paid. Defendant No.2 had filed
the list of witnesses and affidavits of evidence on 14th March, 2016. Copies
of the same were supplied and the matter was listed on 16th and 19th August,
2018 for the Defendants' evidence. However, on 16th August, 2016,
Defendant No.2 did not appear before the Court on the ground of illness.
Thereafter i.e., from 29th September, 2016, Defendant No.2 had appeared on
all occasions except on 12th February, 2018. On two occasions, the cross
examination was recorded. The order dated 15th February, 2016 is
categorical that only two opportunities would be given to Defendant No.2 to
lead evidence. Clearly, Defendant No.2 was present before the Court on 29th
September, 2016, 1st December, 2016, 27th January, 2017, 13th April, 2017,
25th July, 2017 and 10th October, 2017. Out of these occasions, the
Defendant No.2 was cross examined on only two occasions. It is seen from
the record that adjournments have been taken only because of inconvenience
of either of the counsels in this matter. The defendant no.2 finally did not
appear on 12th February 2018 due to ill-health and his evidence was then
closed by the Joint Registrar on 12th February 2018. The appeal against this
order was filed on 2nd April 2018 and was taken up for hearing today after
issuance of notice.
7. The Court is today informed that defendant no.2 has unfortunately
passed away on 7th August, 2018. It is noticed from the record that
Defendant No.2 had been sometimes travelling from Dubai to appear before
the Court but due to various inconveniences on behalf of the counsels
of either side, including his own counsel, the matter is being adjourned from
time to time. This state of affairs could have been completely avoided if
endless cross examination is not permitted and when outstation witnesses or
old witnesses appear, it is made clear that no adjournments shall be granted
and evidence is recorded on a day to day basis. A perusal of the oral
evidence recorded shows that a substantial part of the cross examination of
Defendant no.2, running into a total of 16 pages has already been recorded.
8. Under these circumstances, it is directed that whatever evidence has
been recorded of Defendant No.2 shall be read in evidence, at the final
hearing of the suit. No further evidence is permitted in the matter.
9. Upon the Plaintiffs taking steps for impleadment of the LRs, the
counsel for Defendant No.2 shall file his vakalatnama, duly executed by the
LRs. The matter shall be heard finally on the next date. No further
opportunity for evidence is given to either of the parties.
10. OA is disposed of with these observations.
Further directions:
11. It is directed that as per the Delhi High Court (Original Side) Rules,
2018 whenever an outstation witness appears before the Joint Registrar or
Local Commissioner, evidence has to be recorded on a day to day basis and
no adjournment ought to be granted. The relevant rule is extracted below:
"Chapter XI, Rule 13 of the Delhi High Court
(Original Side) Rules, 2018:
13. Evidence of outstation witnesses.-Recording of
evidence of outstation witness(es), shall be on day-to-
day basis, till the witness(es) is discharged."
12. The above Rule shall be strictly adhered to. A copy of this order be
sent to the Registrar General for being circulated to all the Joint Registrars
recording evidence on the Original side of this Court.
CS (OS) 184/2008 & I.A. 1225/2008
13. Learned Counsel for Defendant No.3 informs the Court that
Defendant No.2 has passed away on 7th August, 2018. He is survived by his
wife and two children. The names of the LRs of Defendant No.2 shall be
provided to learned counsel for the Plaintiffs within two weeks from today.
Plaintiffs to implead the LRs within two weeks thereafter by filing an
amended memo of parties. Vakalatnama be also filed by Ld. Counsel for
defendant no.2 within two weeks.
14. List on 12th October, 2018 for final hearing.
PRATHIBA M. SINGH
JUDGE
AUGUST 27, 2018/dk
