Pannalal Rathore & Anr. vs W.H. Deeth (Ballabgarh) & Co.
2018 Latest Caselaw 356 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 15th January, 2018.

+                          CS(OS) 1094/2012

        PANNALAL RATHORE & ANR.              .... Plaintiffs
                       Through: Mrs. Anjali J. Manish and
                                Mr. Priyadarshi Manish,
                                Advs.
                         Versus

    W.H. DEETH (BALLABGARH) & CO.                            ..... Defendant
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

IA No.543/2018 (for exemption).
1.

Allowed, subject to just exceptions.

2. The application stands disposed of.

OA No.7/2018 (of the plaintiff/appellant against order dated 15th February, 2017).

3. The plaintiffs have preferred this Chamber Appeal against the order, dated 15th December, 2017 of the Joint Registrar, closing the evidence of the plaintiff/appellant.

4. Issues, in this suit for specific performance of an Agreement of Sale of immovable property, were framed on 18th January, 2017 and the plaintiffs/appellants directed to file list of witnesses within two weeks and affidavits by way of examination-in-chief within four weeks and the suit posted before the Joint Registrar on 2nd March, 2017.

5. By 2nd March, 2017, the plaintiffs/appellants neither filed any list of witnesses nor affidavits by way of examination-in-chief and sought adjournment.

6. For the reason verbally communicated by the counsel for the plaintiffs/appellants to the Joint Registrar on 2nd March, 2017, the Joint Registrar gave „last opportunity‟ of four weeks to the plaintiffs/appellants to file list of witnesses and affidavits by way of examination-in-chief of the witnesses of the plaintiffs/appellants and re-notified the suit for recording of evidence on 24th July, 2017.

7. The position remained unchanged by 24th July, 2017 also. Not only so, none appeared on behalf of the plaintiffs on the said date. Though the counsel for the defendant on 24th July, 2017 urged the Joint Registrar to close evidence of the plaintiffs/appellants the same being the last opportunity and the counsel for the plaintiffs/appellants and the witnesses having not even bothered to appear before the Joint Registrar on 24th July, 2017, the Joint Registrar "in the interest of justice" granted "one more opportunity" to the plaintiffs/appellants to file list of witnesses and affidavits by way of examination-in-chief within four weeks, subject to payment of costs of Rs.20,000/- and posted the suit for recording of evidence on 5th September, 2017.

8. The plaintiffs/appellants still did not file affidavits by way of examination-in-chief within four weeks of 24th July, 2017 and filed IA No.10111/2017 which came up before the Joint Registrar first on 5 th September, 2017 itself. The order of the Joint Registrar of the said date records that the affidavits by way of examination-in-chief were claimed to

have been filed only on 4th September, 2017 and the plaintiffs/appellants sought waiver of costs. Though the defendant again urged for closure of evidence but the Joint Registrar, for the reason of being occupied in recording of evidence in some other case, yet again granted an opportunity to the plaintiffs/appellants and the suit was posted on 14th and 15th December, 2017 for plaintiffs/appellants‟ evidence.

9. The Chamber Appeal, being OA No.160/2017 preferred by the plaintiffs/appellants for waiver of costs of Rs.20,000/- was dismissed on 5th December, 2017.

10. It was in the aforesaid state of affairs, that on 14 th December, 2017, when no witness of the plaintiffs/appellants appeared, the learned Joint Registrar, subject to payment of further costs of Rs.5,000/-, kept the matter for 15th December, 2017 as already scheduled and on 15th December, 2017, when costs only of Rs.20,000/- as against total cost of Rs.25,000/- due was paid and neither the counsel for the plaintiffs/appellants nor the witnesses appeared, the Joint Registrar closed the evidence of the plaintiffs/appellants.

11. The only argument of the counsel for the plaintiffs/appellants is of the demise on the previous night of the mother / mother-in-law of the counsels.

12. The Joint Registrar, in the order dated 15th December, 2017, has noticed the contention of the counsel for the defendant that other counsels had also been appearing.

13. The counsel for the plaintiffs/appellants controverts the said statement.

14. However, the only explanation as to why the witnesses were not present is that they are senior citizens.

15. If the plaintiffs/appellants, owing to being senior citizens, are unable to even appear in evidence, I wonder how they can be said to be ready and willing to perform their part of the contract, of which specific performance is sought.

16. The counsel for the plaintiffs/appellants then states that the plaintiffs/appellants are not residents of Delhi.

17. I have enquired, whether the witnesses were in Delhi for 14 th and 15th December, 2017.

18. The answer is in the negative.

19. The aforesaid shows that the two witnesses, whose affidavits by way of examination-in-chief had been filed, were not intending to appear on 14th / 15th December, 2017 for leading evidence in the suit. It is thus not as if the plaintiffs defaulted on the said dates for the reason of bereavement in the family of counsels for plaintiffs, which is the only thing argued. There is not a whisper as to why the witnesses did not come to Delhi for deposing on 14th / 15th December, 2017. In this circumstance, no advantage can be permitted to be drawn of the unfortunate bereavement suffered by counsel for plaintiffs. Even if the counsels had appeared on 14th / 15th December, 2017, the witnesses in any case would not have been there.

20. The counsel for the plaintiffs/appellants then states that the witnesses had not travelled owing to a Transfer Petition having been filed

for transfer of a suit pending in Saket Courts, New Delhi to this Court for being tried along with this suit.

21. I have enquired from the counsel, whether there was any stay of proceeding in the suit.

22. The answer is in the negative.

23. In fact, what emerges is that the Transfer Petition was dismissed as far back as on 24th October, 2017.

24. The plaintiffs have availed five dates of hearing over a period of one year for leading their evidence. Repeated warnings were given to plaintiffs that the opportunities being so given were „Last‟. Notwithstanding the same, the plaintiffs have not led their evidence.

25. The plaintiffs also showed reluctance to pay costs subject to payment of which further opportunities were given to plaintiffs.

26. The plaintiffs today also, by taking the plea of bereavement suffered by counsels, but which as aforesaid has nothing to do with appearance of witnesses, who it is admitted in memorandum of this appeal were not intending to appear on 14th / 15th December, 2017, have attempted to have notice of this Chamber Appeal issued. Other reasons which also have no basis in memorandum of appeal and have turned out to be not available, have been urged. The plaintiffs are clearly not interested in leading their evidence.

27. I may notice that in a suit for specific performance of an Agreement of Sale, the plaintiff is required to be ready and willing not only till prior to the institution of the suit but even till post the decree for specific

performance and if found to be lacking, is not entitled to such a discretionary relief. The plaintiffs/appellants in the present case by their conduct aforesaid of taking adjournments after adjournments for leading evidence, have abundantly demonstrated their being not ready and willing for performance of their part of the contract. The plaintiffs, after obtaining interim order restraining the defendant from creating third party interest in its properties and by thereafter delaying the suit, are abusing the legal process to coerce the defendant into give in to the demand / claim of plaintiff.

28. The counsel for the plaintiffs/appellants states that valuable rights of the plaintiffs/appellants are at stake.

29. If the plaintiffs/appellants are not found interested in pursuing their valuable rights, the court cannot keep the suit pending. There is no right to take years or decades for keeping a suit pending.

30. The courts, if in the name of „valuable rights‟, „in the interest of justice‟ continue to interfere in appeals against such orders, then would be clearly sending a message to the advocates and litigants that their intent and sermons for expediting litigation are but hollow words on which the Courts themselves don‟t act. Unless the Courts themselves start respecting the dates given by them, they cannot expect the advocates and litigants to respect the same and advocates and litigants will continue to walk into Courts with knowledge that adjournments are for asking.

31. I have in order dated 5th September, 2017 in CM(M) 965/2017 titled Zulfiqar Ali Vs. Mohd. Idrish held that unless the Courts start enforcing discipline and refuse to grant indulgence and dates at the mere asking, as

has grown to be a practice, the Advocates and the litigants would refuse to respect the dates and take the dates of hearing before the Courts casually, without any seriousness attached thereto and without any preparation for participation in the hearing for which the matter is listed and which will result in the suits continuing to languish and all the efforts being made on the Administrative side to expedite the disposal of the suits going waste. It is only when the Courts, acting judicially refuse to grant indulgence will the measures prescribed on the Administrate side will bear any fruit. I have in order dated 13th October, 2017 in CM(M) No.1135/2017 titled Sunita Kathuria Vs. Arun Kathuria, relying on Dr. Anil Gupta Vs. Panna Lal Gupta 2017 SCC OnLine Del 10242, order dated 8th September, 2017 in CM(M) 979/2017 titled Madan Gopal Singh Vs. Mahinder Kaur, order dated 18th September, 2017 in CM(M) 1038/2017 titled P.S.S. Agro & Investment Pvt. Ltd. Vs. Papita Devi and order dated 25th September, 2017 in CM(M) 931/2017 titled Bharat Bhushan Vs. Dorothy John, observed that the practice of the Courts granting indulgence in such matters in the past has encouraged such negligence and unless the Courts stop granting such indulgence, the said practice affecting the administration of justice shall continue.

32. It has aptly been said,

"People Don't Change When you Give them an Option!!! They Change when they Realise that there's No Other Option!!!"

33. The counsel for the plaintiffs/appellants has relied on para 16 of Shiv Cotex Vs. Tirgun Auto Plast Private Limited (2011) 9 SCC 678 and paras 30 to 37 of Salem Advocate Bar Association, T.N. Vs. Union of India (2005) 6 SCC 344.

34. The law laid down in the aforesaid paragraphs, rather than coming to the rescue of the counsel for the plaintiffs/appellants, is against the counsel for the plaintiffs/appellants. Though there may have been sufficient cause for non-appearance of the counsel for the plaintiffs/appellants before the Court on 14th and 15th December, 2017 but there is no sufficient cause as to why the plaintiffs/appellants / witnesses whose affidavits by way of examination-in-chief had been filed and who are stated to be residents of outside Delhi did not even come to Delhi for the purposes of having their evidence recorded. The same shows that the plaintiffs/appellants / witnesses did not in any case intend to tender their evidence on 14th and 15th December, 2017.

35. There is no merit in the appeal.

36. Dismissed.

RAJIV SAHAI ENDLAW, J.

JANUARY 15, 2018 „pp‟