Delhi High Court
Vaneeta Khanna & Ors. vs Vikram Sehgal on 7 October, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 17th September, 2021
Decided on : 07th October, 2021
+ CM(M) 520/2021
VANEETA KHANNA & ORS. ..... Petitioners
Through: Petitioner No.1 in person
Versus
VIKRAM SEHGAL ..... Respondent
Through: In person
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
1. The present petition under Article 226 of the Constitution of India
impugns the following three orders passed by the ADJ-02 (West), Tis Hazari
Courts, Delhi passed in Civil Suit No.611999/2016:
(i) Order dated 16th April, 2021 dismissing the application filed by
the petitioners/defendants under Section 151 of the Code of
Civil Procedure, 1908, (CPC), for placing on record complaint
dated 11th November, 2014 against the petitioners' previous
counsel for not conducting proper cross-examination of the
respondent's/plaintiff's witness.
(ii) Order dated 16th April, 2021 dismissing the application filed on
behalf of the petitioners under Order 18 Rule 17 of CPC for
recalling respondent's witnesses namely respondent himself, Jai
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Bhagwan, Charan Dass and Bijender Kumar for further cross-
examination.
(iii) Order dated 16th April, 2021, only partly allowing the
application of the petitioners under Order 8 Rule 1A(3) of CPC
for taking on record documents filed by the
petitioners/defendants.
2. After hearing the parties, judgment was reserved in the matter on 17th
September, 2021. Both parties have filed written submissions which have
been taken on record.
3. The suit from which the present petition arises was a suit for recovery
of Rs.11,90,000/-. The said suit was contested by the petitioners by filing a
written statement, wherein it was stated that the alleged Will dated 20th June,
2006 of the petitioner no.1 and respondent's mother was forged and
fabricated and the alleged Will dated 26th March, 2007 of petitioner no.1 and
respondent's father was executed under force and coercion. The aforesaid
Wills are also subject matter of an earlier partition suit filed on behalf of the
petitioner no.1 which is also pending before the Trial Court. The issues
were framed in the present suit on 15th July, 2010 and thereafter evidence
was led on behalf of the respondent and the same was concluded in 2015.
On 15th September, 2016 affidavit of evidence was filed on behalf of the
petitioners. However, till date the cross-examination of the petitioner's
witnesses has not commenced.
4. As regards the impugned order dated 16th April, 2021, dismissing the
application of the petitioners filed under Section 151, CPC, for placing on
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record complaint against their previous counsel, no submissions were made
on behalf of the petitioners impugning the said order. The said order
correctly records that the court cannot take action against a counsel for not
properly conducting the case. Therefore, the complaint sought to be placed
on record against the counsel was rightly dismissed.
5. As regards the impugned order in respect of application filed by the
petitioners under Order 8 Rule 1A(3), CPC, the petitioners were allowed to
place on record order dated 16th May, 2014 passed in the partition suit and
copy of the list of documents filed by the father of petitioner no. 1 and the
respondent, C.L. Raizada in the said suit. The grievance of the petitioners
against the said impugned order is that they were not allowed to place on
record relevant documents bearing signatures of the mother of petitioner no.
1 and the respondent, in support of their contention that the mother's Will
dated 20th June, 2006 is forged and fabricated.
6. The petitioner has placed on record a subsequent order dated 27th
August, 2021 passed by the Trial Court, whereby the applications filed by
the petitioners under Order 7 Rule 14, CPC, for filing list of additional
witnesses and application under Order 16 Rule 1 and 3, CPC for summoning
additional witnesses, have been partly allowed by the Trial Court. The Trial
Court while partly allowing both the applications observed that documents
bearing the signature of the mother of the petitioner no. 1 and the respondent
are relevant for the present suit. In the said order, it was also noted by the
Trial Court that the authenticity of both the wills are facts in issue in the
present suit. In view of the aforesaid order dated 27th August, 2021, the
grievance of the petitioners in respect of the impugned order dated 16 th
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April, 2021, disallowing the petitioners to place on record relevant
documents bearing signatures of the mother of petitioner no.1 and the
respondent, stands redressed.
7. Vide the order 27th August, 2021, the following witnesses are taken
on record and are summoned with relevant documents:
(i) Clerk/official from Allahabad Bank, 1A Banarasi Dass Estate
Timarpur, Delhi-54 along with Account Opening Form and other
documents containing the signature of Late Smt. Pushpa Sehgal
when she signed while getting her account opened.
(ii) Mr. Deepak Jain, Handwriting Expert.
(iii) Clerk from office of Senior Superintendent of Post Office, Delhi-54,
North Postal Division along with the applications signed by Pushpa
Raizada for purchasing the KVP's.
(iv) Clerk from Allahabad Bank, Ground Floor, 17, Parliament Street,
New Delhi to bring all documents signed by Pushpa Raizada for
getting her locker no.401, opened.
8. The main grievance of the petitioners is in respect of the impugned
order dated 16th April, 2021 with regard to the application filed by the
petitioners under Order 18 Rule 17, CPC, for recalling the respondent's
witnesses, namely, respondent himself, Jai Bhagwan, Charan Dass and
Bijender Kumar for further cross-examination.
9. The petitioner no. 1 appearing in person has submitted that:
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(i) The petitioners want to recall the aforesaid witnesses to
confront them with the undated statements given by the said
witnesses in the partition suit which are contrary to the
evidence given by the said witnesses in the present suit.
(ii) Since these undated statements are not on oath, they cannot be
exhibited and therefore, it is sought that the aforesaid witnesses
may be recalled so that they can be confronted with the
aforesaid undated statements.
(iii) The lawyers engaged by the petitioners earlier, erroneously did
not confront the said witnesses with the undated statements in
the course of the cross-examination conducted by them and that
the petitioners cannot be allowed to suffer on account of the
fault of her lawyers.
10. Respondent appearing in person on advance notice has submitted that:
(i) The aforesaid application has been filed belatedly inasmuch as
the plaintiff's evidence in the suit got concluded on 17 th
December, 2015.
(ii) The undated statements that are sought to be put before the
respondent's witnesses were filed in the partition suit on 29 th
August, 2008 and hence were already available with the
petitioners during the cross examination in the present suit.
(iii) All the three witnesses were exhaustively cross-examination by
the counsel for the petitioners.
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(iv) It is falsely averred that the cross-examination was conducted
by the previous counsels in a faulty manner as the said previous
counsels are still appearing for the petitioner no. 1 and her
husband in other proceedings.
(v) Petitioner no.1 herself is well-versed with her case and has been
appearing in person on all the dates of the case and the affidavit
filed by her in support of the present applications also states
that she is well-versed with the facts of the case.
(vi) Petitioners did not disclose that an earlier application under
Order 18 Rule 17 of CPC filed for recalling respondent's
witness, namely, Jai Bhagwan has been dismissed by the Trial
Court vide order dated 20th July, 2016 and that no appeal has
been filed against the said order.
(vii) The present application has only been filed so as to fill-in the
lacuna and to prolong the proceedings in her case and therefore,
cannot be allowed.
11. I have heard the rival contentions and perused the impugned order
passed by the Trial Court and the written submissions filed by both the
parties.
12. The Trial Court has dismissed the aforesaid application filed on
behalf of the petitioners under Order 18 Rule 17 of CPC by observing that:
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(i) The statements of the witnesses sought to be confronted to them
were filed on 29th August, 2008 in the partition suit between the
same parties.
(ii) The recovery suit was filed on 29th October, 2009 and the said
witnesses were cross-examined at length in the year 2015.
(iii) The petitioners despite being aware of the statements, the
aforesaid witnesses were not confronted with the said
statements.
(iv) The erstwhile counsels may have taken a strategic call as not to
confront the said witnesses with the aforesaid statements.
Therefore, it cannot be conclusively said that the erstwhile
counsels had not conducted the cross-examination properly.
(v) Petitioners are bound by the acts of their advocate when it was
done while conducting the case on behalf of the petitioners.
(vi) It was noted in the order dated 19th March, 2015 of the Trial
Court passed in the present suit that the petitioner no. 1 was
threatening the aforesaid witnesses and taking into account her
conduct, the in-charge of PP, Tis Hazari was called and the
SHO was directed to depute personnel to ensure safety of
witnesses and decorum of court.
(vii) The documents proposed to be put to the respondent/plaintiff
have been obtained from banks and police etc. and have not
come from the custody of the respondent. The documents were
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neither prepared by him and nor were bearing his signature. So,
he cannot be expected to comment on them.
13. I have examined the impugned order passed by the Trial Court.
Conducting cross examination in a suit is a specialized job. It is only with
experience that a counsel develops skills for cross examination. Different
Advocates may conduct cross-examination in different manner and it may
not be correct to say that which is the correct approach and which is not.
Hence, at the mere behest of a dissatisfied litigant, it cannot be taken that the
advocate has not conducted proper cross-examination of the witnesses. The
Advocate in his wisdom conducts the cross-examination of the witnesses
and a litigant cannot approach the court three years later and be heard to say
that the cross-examination was not conducted properly.
14. Therefore, the impugned order has correctly noted that the litigant is
the principal who is bound by all acts of his Advocate, who acts as his agent,
so long as the aforesaid acts are conducted in the course of his professional
duty. Even if it is assumed that the contention of the petitioners is correct
that the cross-examination was not conducted in a proper manner, the
petitioners would still be bound by the same.
15. It is also a matter of record that the petitioner no.1 was herself
present in Court when the cross-examination was conducted and that all the
three witnesses were exhaustively cross-examined by the advocate
appearing on behalf of the petitioners. It is also borne out from the record
that the petitioner no.1 has been appearing herself throughout the
proceedings and she is well aware of the facts and circumstances of the case
as was stated in the affidavit filed in support of the applications.
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16. As rightly pointed out by respondent in person, the petitioners are
guilty of concealment of facts. The fact that a similar application filed on
behalf of the petitioners was dismissed by the Trial Court vide order dated
20th July, 2016 should have been disclosed in the present application.
17. It is a settled principle of law that the provisions of Order 18 Rule 17
of CPC cannot be used by a party to fill-in lacuna in his case. The
petitioners were given full opportunity to cross-examine the witnesses of the
respondent and the said witnesses were exhaustively cross-examined. Now
after a lapse of three years, the petitioners cannot be allowed to fill-in lacuna
in their case by seeking to recall the aforesaid witnesses. Reference in this
regard may be made to the decision of the Hon'ble Supreme Court in K.K.
Velusamy Vs. N. Palanisamy (2011) 11 SCC 275. Relevant portion of the
same is set out below:
9. Order 18 Rule 17 of the Code enables the court, at any stage of a
suit, to recall any witness who has been examined (subject to the law
of evidence for the time being in force) and put such questions to him
as it thinks fit. The power to recall any witness under Order 18 Rule
17 can be exercised by the court either on its own motion or on an
application filed by any of the parties to the suit requesting the court
to exercise the said power. The power is discretionary and should be
used sparingly in appropriate cases to enable the court to clarify any
doubts it may have in regard to the evidence led by the parties. The
said power is not intended to be used to fill up omissions in the
evidence of a witness who has already been examined. (Vide Vadiraj
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Naggappa Vernekar v. Sharadchandra Prabhakar Gogate [(2009) 4
SCC 410 : (2009) 2 SCC (Civ) 198] .)
10. Order 18 Rule 17 of the Code is not a provision intended to
enable the parties to recall any witnesses for their further
examination-in-chief or cross-examination or to place additional
material or evidence which could not be produced when the evidence
was being recorded. Order 18 Rule 17 is primarily a provision
enabling the court to clarify any issue or doubt, by recalling any
witness either suo motu, or at the request of any party, so that the
court itself can put questions and elicit answers. Once a witness is
recalled for purposes of such clarification, it may, of course, permit
the parties to assist it by putting some questions.
18. Therefore, there is no infirmity in any of the impugned orders passed
by the Trial Court that warrant interference of this Court in exercise of
jurisdiction under Article 227 of the Constitution of India.
19. Dismissed.
AMIT BANSAL, J.
OCTOBER 07, 2021
dk
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