Delhi High Court
Mohd Shafeeq vs Yogesh Kumar Verma And Anr. on 1 February, 2018
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 1st February, 2018
+ CM(M) 414/2017 and CM APPL.14240/2017 (stay)
MOHD SHAFEEQ ..... Petitioner
Through: M. Mohsin Israily, Advocate with
M. Saif Islam Israily, Advocate
versus
YOGESH KUMAR VERMA AND ANR. ..... Respondents
Through: Mr. Prashant Sharma Advocate for
R-1 along with R-1 in person.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The controversy raised through the petition at hand arises out of
proceedings in the civil suit (CS No.525/2016) in which the
respondents 1 to 2 herein are the plaintiffs and the petitioner herein is
the defendant no.1.
2. The suit was instituted praying for relief in the nature of
possession, mesne profits and permanent injunction. It was filed in
2013 and had reached the stage of trial when there were certain
defaults on the part of the defendant (i.e., the petitioner). This is
confirmed by the copy of the proceedings recorded on 27.10.2016
revealing that though one of the defendants was present, the counsel
would not appear in spite of the matter being kept in wait till 2:30 p.m.
No satisfactory explanation worth the name has been offered for such
default.
3. The plaintiff Yogesh Kumar Verma was present as his own
witness (PW-1), his examination-in-chief having been recorded earlier
on 19.02.2015. The cross-examination had been deferred at that stage
on the ground the counsel for the defendants was busy. Yet, the
counsel would again protract the Additional District Judge (ADJ)
closed the opportunity of cross-examination of PW-1 by directions in
the order dated 27.10.2016. It may also be noted here that the case had
reached the stage of defendants' evidence, when the matter was taken
up on 06.02.2017, two witnesses of the defendant were present,
examined, cross-examined and discharged. Though affidavit of two
other witnesses had been submitted, the witnesses themselves were not
present in the court. The ADJ declined to grant any further time and
closed the opportunity for defence evidence.
4. The defendant thereafter moved an application under Section
151 of the Code of Civil Procedure, 1908 (CPC) for recall of the order
dated 27.10.2016 seeking liberty to cross-examine PW-1. It appears
from the copy of the proceedings recorded on 06.02.2017 that the
counsel for the defendant gave no objection to court commissioner
being appointed at his expenses for such purposes. The trial court,
thus, appointed court commissioner, fixed the remuneration and called
upon the defendants to pay the fee within one week thereof, giving
liberty to the court commissioner to execute the commission availing
the court room on any working day at the time when the court was not
in session. It is conceded that the defendant did not pay
commissioner's fee and thus, the commission could not be carried out.
5. Against the above backdrop, the defendant seek revival of the
right to cross-examine PW-1 and also to lead their own evidence.
6. Having heard both sides and having gone through the record,
though it appears that the defendant have tried to cause intentional
delay to the proceedings, given the nature of dispute, this court is
inclined to grant one more indulgence, though subject to suitable
terms.
7. Thus, it is directed that the petitioner will be entitled to cross-
examine Yogesh Kumar Verma (PW-1) in the trial court on the date to
be fixed for such purposes by the trial judge, subject to payment of
costs of Rs.20,000/-. For availing said opportunity, the costs will have
to be paid in advance. It shall be the responsibility of the petitioner to
arrange the presence of his counsel, duly briefed, ready to conduct the
proceedings on the first call of the case. After the said witness (PW-1)
has been cross-examined, the trial judge shall take the case to the stage
of defendants' evidence, wherein one more opportunity shall be
granted to the petitioner (the defendant) for examining his remaining
witnesses as per the list statedly already submitted.
8. Needless to add, if the number of witnesses is such as cannot
reasonably be expected to be examined in one-go by the trial court,
more than one date of hearing for such purposes may have to be fixed.
But then, for this, it is the trial judge who shall take a call. Defendant
will not raise any objection if the trial judge fixes only one date of
hearing for examination of all the defendants' witnesses.
9. The impugned order to the extent thereby right of the petitioner
for adducing evidence in defence and cross-examination of the
plaintiffs' witness was curtailed stands set aside accordingly.
10. The petition and the applications filed therewith stand disposed
of in above terms.
R.K.GAUBA, J.
FEBRUARY 01, 2018
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