Delhi High Court
Lekh Raj vs Rita & Ors on 16 May, 2023
Neutral Citation Number 2023:DHC:3527
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 16.05.2023
+ CM(M) 1341/2019 & CM APP No. 40458/2019
LEKH RAJ ..... Petitioner
versus
RITA & ORS ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. U.M. Tripathi, Advocate
For the Respondent : Mr. Dilip Kumar Jha, Ms. Beauty
Singh and Mr. Rajneesh Kumar Singh,
Advocates for R-1 alongwith R-1.
Mr. Randeep Pundir, Advocate for R-3
to 5.
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
With the consent of parties, the petition is taken up today for
disposal.
1. The petitioner challenges the order dated 11.03.2019 passed by
the learned Trial Court in CS No. 804/2017 titled Rita vs. Lekh Raj &
Ors, whereby the application under Order XVIII Rule 17 CPC, 1908
filed on behalf of petitioner/defendant no.1 seeking recording of
evidence of one Sh. Anjani Kumar, was dismissed.
Signature Not Verified
Digitally Signed
Signing Date:22.05.2023
13:45:46
Neutral Citation Number 2023:DHC:3527
2. Mr. U.M. Tripathi, learned counsel appearing for the petitioner
submits that though said Sh. Anjani Kumar was not named in the list of
witnesses, however, his evidence becomes crucial for the reason that
said Sh. Anjani Kumar is the person who has executed the purported
title documents in favour of the respondent/plaintiff as also,
simultaneously, executed title documents in favour of the
petitioner/defendant no.1.
3. Learned counsel submits that the learned Trial Court has
dismissed the application for the reason that despite number of
opportunities having been granted to the petitioner/defendant no.1 to
examine its witnesses, the petitioner/defendant no.1 did not take proper
steps within time to examine or even seek examination of the said Sh.
Anjani Kumar.
4. Learned counsel also submits that the petitioner be afforded one
opportunity to record the evidence of Sh. Anjani Kumar for the purpose
of establishing whether the documents of either of parties are genuine or
not. Learned counsel submits that the said examination would, to a large
extent, assist the learned Trial Court in resolving the lis before it, that
too, by way of evidence which could, hardly be called as irrelevant.
5. Per Contra, Mr. Dilip Kumar Jha, learned counsel appearing for
the respondent/plaintiff submits that the entire motive behind the
application filed before the learned Trial Court as also the present
petition is only to delay and protract the trial.
6. Learned counsel vehemently submits that it was only after the
closure of defendant's evidence that the matter was kept for final
hearing and further submits that it was only after passing of two dates of
Signature Not Verified
Digitally Signed
Signing Date:22.05.2023
13:45:46
Neutral Citation Number 2023:DHC:3527
hearing before the learned Trial Court, that the application under Order
XVIII Rule 17 of CPC, 1908 was filed by the petitioner/defendant no.1
to further delay and protract the trial.
7. Learned counsel also brings to the Court's attention that though
the impugned order was passed on 11.03.2019, the present petition was
filed only on 31.08.2019. In other words, learned counsel submits that
the petitioner is habitual of delaying the suit, as also is not at all affected
by the impugned order.
8. Learned counsel submits that the petition should be dismissed
with costs.
9. This Court has considered the rival submissions and has perused
the impugned order as also seen the other documents which are relevant
and are placed on the record.
10. On a query by this Court, the counsel are ad idem on the issue that
Sh. Anjani Kumar indeed was the person who had signed and executed
the documents, one set of those which were in favour of
petitioner/defendant no.1 and the other set in favour of the wife of
defendant no.2-Achhar Singh and mother of the parties.
11. Having regard to the fact that both the parties have examined their
own witnesses in support of their contentions before the learned Trial
Court, however, upon the submissions of the parties, this Court is of the
considered opinion that the examination of Sh. Anjani Kumar would
greatly lead to the learned Trial Court in coming to a firm conclusion as
to which of the set of documents are genuine.
12. This Court is not making any observations in respect of the
genuineness or otherwise of the documents, which is prerogative of the
Signature Not Verified
Digitally Signed
Signing Date:22.05.2023
13:45:46
Neutral Citation Number 2023:DHC:3527
learned Trial Court to deal with. However, keeping in view the
aforesaid, this Court is of the considered opinion that the learned Trial
Court shall permit the recording of evidence of Sh. Anjani Kumar by
petitioner/defendant no.1 on the next date of hearing, i.e., 29.05.2023.
The petitioner is directed to take appropriate steps in this regard.
13. The learned Trial Court shall consider the application so filed by
petitioner/defendant no.1 and, if possible, summon Sh. Anjani Kumar
for recording of evidence on 29.05.2023.
14. Once examination is complete, the learned Trila Court shall allow
the respondent to conduct the cross-examination in the way and manner
as deemed fit by it. After the conclusion of recording of such evidence,
the learned Trial Court shall proceed to dispose of the suit in accordance
with law within four months thereafter.
15. However, the aforesaid direction is subject to the payment of
costs of Rs.20,000/- by the petitioner/defendant no.1 to respondent on or
before 29.05.2023 against a proper receipt.
16. With the aforesaid terms, the petition and pending application
stands disposed of.
TUSHAR RAO GEDELA, J.
MAY 16, 2023
Aj
Signature Not Verified
Digitally Signed
Signing Date:22.05.2023
13:45:46
