Delhi High Court
The Animal Friends vs Delhi Development Authority on 21 September, 2022
$~23(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 926/2022 & CM APPL.39475/2022
THE ANIMAL FRIENDS ..... Petitioner
Through: Mr. Aayush Malhotra and
Mr.Soham Kumar, Advs.
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr.Mayank Bansal, Adv.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT(O R A L)
% 21.09.2022
1. This petition, under Article 227 of the Constitution of India,
th
assails order dated 25 July 2022, passed by the learned Additional
District Judge ("the learned ADJ") in CS(Comm) 77/2020 (The
Animal Friends v. DDA), whereby the learned ADJ has closed the
right of the petitioner, as the plaintiff in the suit, to lead evidence.
2. The examination-in-chief of PW-1, being the first witness of the
petitioner, was conducted on 11th December 2018. The matter was
directed to be listed for cross-examination of PW-1 on 6th August
2019.
3. On 6th August 2019, the petitioner informed the learned ADJ
that Mr. Shiv Kapoor, whose statement had been recorded by way of
examination-in-chief on 11th December 2018, was undergoing
dialysis. The learned ADJ permitted the petitioner to appoint another
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
13:36:17
authorised representative of the DDA as PW-1. The matter was
directed to be re-notified on 3rd December 2019.
4. On 3rd December 2019, learned Senior Counsel submits that the
learned ADJ was on leave and that no order, of the said date, was
uploaded on the website of the District Court.
5. After 3rd December 2019, Mr. Aayush Malhotra, learned
Counsel for the petitioner submits, on instructions, that the Courts
discontinued physical functioning owing to the intervention of the
COVID-19 pandemic and that the first date of physical hearing
thereafter was 30th May 2022.
6. On 30th May 2022, the learned ADJ took up an application of
the petitioner for substituting Mr. Anil Sarin, the authorised
representative of the petitioner as PW-1 in place of Sh. Shiv Kapoor.
The application was allowed and a learned Local Commissioner was
appointed to record the evidence of PW-1. 4th July 2022, 5th July
2022, 11th July 2022, 12th July 2022, 18th July 2022 and 19th July 2022
were fixed by the order dated 30th May 2022 as the dates when the
learned Local Commissioner would record evidence.
7. On 4th July 2022, according to the petitioner, Mr. Anil Sarin
who had been permitted to be substituted as PW-1 in place of Shiv
Kapoor, was present. However, the petitioner submits that as he had
been informed by the respondent that the respondent would be
changing its counsel, Mr. Anil Sarin left the premises.
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
13:36:17
8. Apropos further dates of hearing, a prayer was made, before the
learned Local Commissioner, that the next date of hearing, for
recording of evidence of PW-1, be fixed after 24th July 2022, as there
was a wedding in the family of PW-1, for which he had to participate
in the functions which were to continue from 15th July 2022 till 24th
July 2022.
9. The learned Local Commissioner, however, correctly observed
that such a direction could not be passed by him as he was bound by
the dates fixed by the learned ADJ.
10. Accordingly, on the next date fixed before the learned ADJ, the
petitioner made a request that the further dates be fixed for recording
of evidence of PW-1 (as, on 4th July 2022, the learned LC had sent the
file to the court of the learned ADJ), as PW-1 had been unable to
appear for recording of his evidence owing to wedding in his family.
11. The learned ADJ, however, has rejected the request observing
that the date of wedding was 24th July 2022. He has also noted the fact
that, though issues were framed on 15th November 2016, the plaintiff
had not been in a position to lead evidence even as on that date.
12. In so observing, the learned ADJ appears to have overlooked
the fact that (i) examination-in-chief of Shiv Kapoor as PW-1 was
recorded on 11th December 2018, (ii) on 6th August 2019, when the
matter was next posted, the learned ADJ, on being informed of the
condition of health of PW-1 Shiv Kapoor, had himself noted that the
petitioner could have appointed another authorised representative as
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
13:36:17
PW-1, (iii) on the next date of hearing, i.e., 3rd December 2019, the
learned ADJ was on leave, (iv) thereafter, till 30th May 2022, the
court functioned virtually, so that there could be no question of
recording of evidence, (v) on 30th May 2022, the learned ADJ
allowed the substitution of Shiv Kapoor with Anil Sarin as PW-1 and
directed the learned LC to record evidence, (vi) on the first date fixed
before the learned LC, i.e. 4th July 2022, PW-1 Anil Sarin was
present, but his evidence could not be recorded as there was a change
of counsel on behalf of respondent and (vii) the marriage ceremonies
of the niece of PW-1 were to take place from 15th to 24th July 2022.
13. In these circumstances, the learned ADJ, prima facie, could
have granted one more opportunity to the petitioner to continue with
leading of petitioner's evidence.
14. Today, Mr. Mayank Bansal, learned Counsel for the DDA
submits that the opportunity for the DDA to lead evidence was also
closed on 18th August 2022.
15. It appears that the first opportunity for the DDA to lead
evidence was in fact, fixed on 18th August 2022. On the very same
day, the evidence of the DDA (DE) was closed by the learned ADJ
observing that no witness was present, nor was any affidavit of any
witness filed before the learned ADJ.
16. In the interests of justice, and without commenting any further
on the impugned orders, and by consent of the parties, this petition is
disposed of by granting one more opportunity to the petitioner to
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
13:36:17
produce the sole witness whose evidence the petitioner seeks to lead
on 6th October 2022. On the said date, the petitioner would make PW-
1 available for recording of examination in chief and cross
examination.
17. On the said date, the DDA would also file its list of witnesses
before the learned ADJ.
18. The learned ADJ would, after conclusion of the recording of
evidence of PW-1, commence with the recording of evidence of the
witnesses cited by the defendant whose evidence is permitted to be led
by the learned ADJ.
19. The petition is accordingly disposed of with the aforesaid
directions with no orders as to costs. The learned ADJ is requested to
renotify the suit, presently listed before him on 23 rd September 2022
for 6th October 2022. Miscellaneous application also stands disposed
of.
C.HARI SHANKAR, J
SEPTEMBER 21, 2022/kr
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
13:36:17
