Delhi High Court
Siraj Khan vs Mohd Mange Khan on 25 May, 2022
$~67
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 489/2022 and CM 25079/2022 (exemption)
SIRAJ KHAN ..... Petitioner
Through: Mr. Brahmanand Gupta, Adv.
versus
MOHD MANGE KHAN ..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
% 25.05.2022
1. This petition under Article 227 of the Constitution of India,
assails an order dated 17th May, 2022, passed by the learned Rent
Controller ("the learned RC"), whereby an application, moved by the
petitioner under Order XVIII Rule 17 of the Code of Civil Procedure,
1908 (CPC) in RC/ARC 5342/2016 (Mohd. Mange Khan v. Siraj
Khan) was dismissed. The petitioner was the respondent before the
learned RC.
2. Given the limited nature of the controversy, we need not burden
ourselves with the dispute between the parties. For the purposes of the
present order, suffice it to state that, on 21st August, 2019, the
evidence of the fourth witness of the respondent (the petitioner before
the learned RC), PW-4 Yaseen, was recorded. Despite grant of
opportunity, he was not cross-examined by the petitioner. The record
of proceedings on 21st August, 2019 reads thus:
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:27.05.2022
16:26:17
"PW4 .
Statement of Yaseen s/o Late Sh. Lal Khan aged about 65
years r/o 240-B, 20 Foota Road. Prem Nagar, Loni.
Ghaziabad, U.P .
On SA
I tender my an evidence by way of an affidavit and the
same is exhibited as Ex. PW4/A which bears my signature
at point A and at point B. I rely upon the following
document:-
(a) a photocopy of my election identity card is exhibited
as Ex. PW4/A (OSR).
XXXXXXXX by Shri Deep Singh proxy counsel for
plaintiff.
Nil. Opportunity given.
RO&AC Sd.
NIYAY BINDU
SCJ-cum-RC NORTH WEST
ROHINI COURTS
DELHI
21/08/2019"
3. Thereafter, the suit proceeded, the petitioner's witnesses were
examined and cross-examined and the matter was finally heard. It was
reserved for orders, to be pronounced at 4:00 PM on 17th May, 2022.
4. At 12:10 PM on the date when the judgment was to be
pronounced, the petitioner moved an application under Order XVIII
Rule 17 of the CPC, seeking recall of PW-4 Yaseen-whose evidence,
as noted hereinabove, was closed on 21st August, 2019, after grant of
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:27.05.2022
16:26:17
opportunity to cross-examine him, which was not availed.
5. Having moved the application, the petitioner chose to remain
absent when the application was taken up by the learned RC at 4:05
PM. The impugned order notes that the application was taken up at
4:05 PM and that, despite repeated calls, no one appeared to pursue
the application.
6. In these circumstances, the learned RC dismissed the
application as a deliberate attempt to delay the proceedings, with costs
of ₹ 4,000/-.
7. The present petitioner under Article 227 of the Constitution of
India seeks to call, into question, this decision of the learned RC.
8. The petitioner has, in the petition, admitted the fact that the
evidence of PW-4 was closed on 21st August, 2019. This candour is,
however, sadly lacking in the manner in which para 5 of the petition
refers to the proceedings of 21st August, 2019 which appears, prima
facie, to be a deliberate attempt to misrepresent what happened that
day.
"5. That however when the matter came back to trial court
from mediation, the petitioner produced PW-4 when the
counsel was not present and Nil opportunity was given to the
respondent vide order dated 21.08.2019."
(Emphasis Supplied)
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:27.05.2022
16:26:17
9. The assertion, in para 5 of the petition, that "Nil opportunity
was given" to the respondent on 21st October, 2019 is a deliberate
misrepresentation of the proceedings which took place on the said
date. A reading of the order reveals that what is stated, therein, is
"Nil. Opportunity given." This indicates that, despite grant of
opportunity, the petitioner did not choose to cross-examine PW-4 and
not that no opportunity was granted to cross-examine the said witness.
This Court deprecates the manner in which para 5 of the present
petition seeks to misrepresent the proceedings which took place on
21st August, 2019.
10. No attempt was made, till 12:10 PM on the date when the
judgment in the matter was listed for pronouncement, i.e. on 17 th May,
2022, to move any application seeking recall of the aforesaid witness
whose evidence was closed on 21st August,2019. The application was
moved at 12:10 PM on 17th May, 2022, in full awareness of the fact
that the matter was listed for pronouncement at 4:00 PM on the said
date.
11. Having moved the application, the petitioner chose to remain
absent when the application was called out for hearing at 4:00 PM.
12. Learned Counsel for the petitioner would seek to submit that the
petitioner was not informed that the application would be heard at
4:00 PM and it was for that reason that he remained absent. This
submission is, to say the least, disturbing. The application having
been moved by the petitioner at 12:10 PM, and the petitioner being
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:27.05.2022
16:26:17
well-aware of the fact that the matter was listed at 4:00 PM, if the
petitioner chose to remain absent at that time, the absence was
obviously deliberate, possibly with the hope that the matter would be
adjourned and the proceedings would be protracted further.
13. The impugned order, passed at 4:05pm, also records the fact
that, despite repeated calls, the petitioner did not turn up to prosecute
the application filed by him at 12:10 PM on that date.
14. The learned RC has, therefore, correctly dismissed the
application with costs.
15. This petition, in my view, is a classic example of the abuse of
process of Court. It requires to be deprecated in the strongest possible
terms.
16. As such, the petition is dismissed in limine with further costs of
₹ 25,000/-, which shall be paid by way of a crossed- cheque favouring
the respondent, within a period of one week from today. These costs
would be in addition to the costs of ₹ 4,000/- imposed by the learned
RC.
17. Miscellaneous application is also disposed of.
C.HARI SHANKAR, J
MAY 25, 2022
r.bararia
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:27.05.2022
16:26:17
