Pannalal Rathore & Anr vs M/S W.H. Deeth (Ballabgarh) & Co.
2018 Latest Caselaw 5876 Del

$~11.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Date of Decision: 27th September, 2018
+      FAO(OS) 41/2018

       PANNALAL RATHORE & ANR                 ..... Appellants
                   Through: Ms.Anjali J.Manish, Adv.

                   Versus

       M/S W.H. DEETH (BALLABGARH) & CO.        ..... Respondent
                     Through: Ms.Ripu     Adlakha, Adv.        with
                     Mr.Kunal Sinha, Adv.

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V. KAMESWAR RAO

                             JUDGMENT

Rajendra Menon, Chief Justice (Oral) C.M.No.9653/2018 (delay)

1. For the reasons stated in the application, the delay in filing the

application is condoned and the application is disposed of.

FAO(OS) 41/2018

2. This appeal filed by the plaintiffs/appellants under Order XLIII Rule 1

of the Code of Civil Procedure read with Section 10 of the Delhi High Court

Act calls in question the tenability of an order dated 15 th January, 2018

passed by the learned Single Bench in O.A.No.7/2018 whereby the right of

the Appellant to lead evidence has been closed. Even though the learned

counsel made various submissions to contend that on the date the case was

listed for evidence, due to certain reasons attributable to counsel's personal

difficulty, the witnesses could not be produced. On going through the orders

available on record, it seems that the Joint Registrar closed the right of

evidence of the Appellant and against the same an appeal was filed before

the learned Single Bench and the learned Single Bench also rejected the

same.

3. On going through the concurrent orders passed by the Joint Registrar

and the learned Single Bench, it is clear that in spite of repeated

opportunities being granted and after costs were imposed on three occasions,

that is, Rs.20,000/-, Rs.5,000/- and Rs.20,000/- respectively, the witnesses

were not kept present and, therefore, the right to lead evidence was closed.

In para-24 the finding recorded is that the plaintiff/Appellant has availed five

dates of hearing over a period of one year for leading evidence. Repeated

warning given with regard to last opportunities being granted did not yield

any positive result and even if the counsel was unable to appear on 14 th /15th

December, 2017, the learned Single Bench found that the witnesses could

have been kept present for cross-examination. Taking note of the manner in

which the plaintiff was delaying the proceedings, by a detailed order passed

the learned Single Bench rejected the application.

4. The discretion exercised by the learned Single Bench and the reasons

given cannot be termed as illegal and perverse to the extent that interference

in the matter is called for.

5. Accordingly, finding no ground, the appeal stands dismissed.

CHIEF JUSTICE

V. KAMESWAR RAO, J

SEPTEMBER 27, 2018/'anb'