Delhi High Court
Rajesh Kumar Singh vs Amar Sinha on 19 September, 2019
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 19.09.2019
+ C.R.P. 77/2018 & CM APPL. 14952/2018
RAJESH KUMAR SINGH ..... Petitioner
versus
AMAR SINHA ..... Respondent
Advocates who appeared in this case:
For the Petitioners: Mr. Avdhesh Kumar Singh, Ms. Harsha, Mr.
Abhishek Gupta and Mr. Sujit Kumar, Advocates
For the Respondents: Ms. Savita Malhotra and Mr. Suman Malhotra,
Advocates
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 03.04.2018 whereby the
application of the petitioner seeking review of the order dated
13.09.2017, whereby the right of the petitioner to lead defence
evidence was closed, was dismissed.
2. Petitioner had filed a suit for specific performance against the
respondent seeking specific performance of an alleged agreement to
sell. Petitioner claimed to be in possession pursuant to the agreement
to sell.
3. Respondent filed his written statements as also counter claim
denying the agreement to sell as also seeking possession and damages
from the petitioner.
4. The suit filed by the petitioner seeking specific performance
was dismissed by the concerned trial court. Petitioner filed an appeal
impugning the order dismissing his suit, however unsuccessfully.
5. In the counter claim filed by the respondent, trial court on
16.05.2015 noticed that several adjournments had been sought by the
petitioner and accordingly it imposed costs on the petitioner and
directed that in case the costs were not paid, the defence of the
petitioner in the counter claim would be struck off. At request of the
petitioner time was granted for 7 days to deposit the costs.
6. On 24.11.2015, trial court noticed that the petitioner had failed
to deposit the cost within one week of the order dated 16.05.2015.
Even till 24.11.2015 i.e. after passage of over 6 months, the costs had
not been deposited. The trial court accordingly stuck off the defence
of the petitioner.
7. Petitioner impugned order dated 24.11.2015 whereby his
defence had been struck off by filing a revision petition to this Court
being CRP No. 99/2016.
8. BY order dated 19.07.2016, this court permitted the petitioner
to file a review petition before the trial court subject to payment of
costs. Further additional cost was imposed on the petitioner. It was
directed that the petitioner shall not seek any adjournment at any stage
in the progress of the counter claim and in case any adjournment was
sought, the impugned order striking off of the defence would stand
revived. Further the Court directed that in case the orders were
complied with the trial court would decide the review application of
the petitioner as per law.
9. Subsequent to the said order, petitioner filed a review petition
before the trial court which review petition was dismissed by order
dated 26.10.2016. It is an admitted position that no further challenge
was made to the dismissal of the review petition.
10. When respondent was leading his evidence, petitioner was
given an opportunity to cross-examine the respondent and his
witnesses. Petitioner availed of that opportunity and cross-examined
the witnesses of the respondent.
11. When respondent closed his evidence, petitioner sought time to
lead defence evidence. Trial court initially granted an opportunity to
the petitioner to lead evidence, however, respondent by subsequent
application under Section 114 CPC sought review of the order dated
13.09.2017 whereby the petitioner was permitted to lead defence
evidence contending that a defendant whose defence had been struck
off, though can cross-examine the witness of the plaintiff cannot lead
defence evidence.
12. By the impugned order herein, the trial court allowed the
review application filed by the respondent and held that as the defence
of the petitioner has been struck off, the petitioner cannot be permitted
to lead defence evidence.
13. Reference may be had to the judgment of the Supreme Court in
Modula India Vs. Kamakshya Singh Deo; A.I.R 1989 SC 162 wherein
the Supreme Court has laid down that defendant whose right has been
struck off to defend the suit is permitted to cross-examine and address
arguments but the same is subject to certain safeguards. The defendant
cannot be allowed to lead his own evidence and even if right to cross-
examine is permitted, the same would not travel beyond the limited
scope of pointing out the falsity or weaknesses of the plaintiff's case
and no circumstances should the cross-examination be permitted to
travel beyond this legitimate scope and to convert itself virtually into
a presentation of the defendant's case either directly or in the form of
suggestions put to the plaintiff's witnesses.
14. Clearly, there is no infirmity in the view taken by the trial court,
in the impugned order dated 03.04.2018, in holding that the petitioner
cannot be permitted to lead its evidence.
15. Further, there is no merit in the contention of the learned
counsel for the petitioner that defence of the petitioner in fact had
been restored by the order dated 19.07.2016 in CRP No. 99/2016. It is
observed that the said order was passed in the earlier revision petition
without notice to the respondent and further the order only permitted
the petitioner to file a review petition. The review petition was filed,
however, the same was dismissed by order dated 26.10.2016 and there
was no further challenge by the petitioner to the said order.
16. It is observed that in the present case, the petitioner apart from
impugning the order dated 03.04.2018 in the prayer also seeks to
challenge order dated 26.10.2018 whereby review petition was earlier
dismissed and order dated 16.05.2015 whereby costs were imposed
and it was directed on his failure the defence would be liable to strike
off. The petitioner at this late juncture cannot be permitted to
challenge orders dated 16.05.2015 and 26.10.2016. It is further
noticed that defence of the petitioner had been strike off by order
dated 24.11.2015, which is not impugned.
17. I find no infirmity in the view taken by the trial court in
declining the petitioner a right to lead affirmative evidence.
18. The Petition has no merit and is accordingly dismissed.
19. Order Dasti under signatures of Court Master.
SANJEEV SACHDEVA, J
SEPTEMBER 19, 2019
'rs'
