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IN THE
HIGH COURT OF DELHI AT NEW DELHI
+CM(M)
1002/2017 & CM No.33285/2017 (for stay)
UMESH GUPTA & ANR ..... Petitioners Through: Mr.
Avneesh Garg & Mr. M.P. Singh,
Advs.
Versus
BRIJ MOHAM GOEL & ORS. .....
Respondents
Through: Mr. S.P. Singh Chaudhari, for
R-1.
Mr. S.K.
Bansal, Mr. Ajay Amitabh
Suman, Mr. Pankaj Kumar & Mr.
Kapil
Kumar Giri, Advs. for R-2&3.
CORAM:
HON'BLE
MR. JUSTICE RAJIV SAHAI ENDLAW O R D E R
% 02.11.2017
1.
This order is in continuation of the earlier order
dated 12th September, 2017.
2.
All the three respondents have
been served and the counsel for the respondent no.1 and the counsel for the
respondents no.2&3 appear.
3.
The counsel for the respondents
no.2&3 states that respondents No.2&3 are not concerned with the present
controversy.
4.
The counsel for the petitioners /
plaintiffs, with respect to the query made from him and as recorded in para
no.8 of the earlier order dated 12th
September, 2017, states that the respondent / defendant no.1, taking cue
therefrom
has filed an application before the Suit Court for rejection of the
plaint
and the said aspect be permitted to be decided in the first instance by
the Suit
Court.
5.
The aforesaid suggestion of the
counsel for the petitioners / plaintiffs is accepted.
CM(M) 1002/2017 Page 1 of 6
6.
As far as the challenge to the
order impugned in this petition is concerned, a perusal of the copies of the
order sheet annexed to the paper book show i) that the issues in the suit were
framed on 3rd August, 2010 and the petitioners / plaintiffs were ordered to lead
evidence first; ii) neither the petitioners / plaintiffs nor the respondents /
defendants led any evidence and
the evidence of the petitioners / plaintiffs was
closed on 16th December, 2011 and the evidence of the respondents / defendants was
closed on 6th
July, 2012; iii) that however vide order dated 28th August, 2012 evidence was
re-opened; iv) that PW1 of the petitioners / plaintiffs was examined on 13th February, 2013 and the suit
adjourned to 1st August, 2013 for cross-examination of PW1; v) that on 1st August, 2013 none appeared for
the respondents / defendants no.1&2 despite repeated calls and the right of
the respondents / defendants no.1&2 to cross-examine PW1 was closed and the
matter adjourned for cross-examination of PW1 by respondent / defendant no.3;
vi) that though the right of the respondents / defendants no.1&2 to
cross-examine PW1 already so stood closed but again vide order dated 1st August, 2013, the said right was
closed; vii) that none was appearing for the respondents / defendants
no.1&2 at that time though were not proceeded against ex parte; viii) that petitioners / plaintiffs closed their evidence
in affirmative on 9th September, 2014 and the suit was adjourned for evidence of the
respondents / defendants; and, ix) that it is not as if the respondent /
defendant no.1 was not appearing at all thereafter; the counsel for the
respondent / defendant no.1 was appearing intermittently.
CM(M) 1002/2017 Page 2 of 6
7.
On enquiry, it is informed that
the respondent / defendant no.1 has filed an affidavit by way of
examination-in-chief of one of the witnesses and whose cross-examination by the
counsel for the petitioners / plaintiffs is yet to take place.
8.
The respondent / defendant no.1
filed the application, against the order allowing which this petition has been
preferred, in or about the month of July, 2016 for opportunity to cross-examine
PW1 blaming the advocates then engaged by the respondent / defendant no.1 for
neglect.
9.
The contention of the counsel for
the respondent / defendant no.1 before this Court also is the same i.e. that
the advocates then engaged by the respondent / defendant no.1 being negligent.
10.
However, neither is there any
whisper in the application nor has anything been argued today as to what
diligence the respondent / defendant no.1 himself was observing in pursuing the
suit. Today also the argument is that the then advocate for the respondent /
defendant no.1 kept the respondent / defendant no.1 in the dark and did not
inform.
11.
Recording of evidence in the suit
invariably requires instructions to be given by the client to the advocate as
to the deposition of the witnesses of the other side. It is thus not
understandable as to on what premise the respondent / defendant no.1 chose not to
pursue the suit by contacting the advocates.
12.
The counsel for the respondent /
defendant no.1 has however raised the argument that the litigant should not
suffer for the negligence of the advocate.
CM(M) 1002/2017 Page 3 of 6
13.
The respondent / defendant no.1
is not an illiterate villager in whose context, it has been so held by the
Courts a century ago and which logic applied today to litigations in the
capital city of the country has led to litigants as well as the advocates
taking it for granted that any amount of negligence on their part will be
condoned, if not by the first Court, in appeals / revisions/ constitutional
remedies provided under the law only for correction of genuine human/legal
errors. However, the indulgence shown by the Courts in yesteryears and the
origin whereof is to be found in the British era, the Judges of which era,
thought that the Indian lawyers are not competent and the Indians are rustics
not aware of their rights, has led to a state of affairs as prevalent today and
which is affecting the administration of Justice, thereby endlessly delaying
the disposal of the suit.
14.
The counsel for the respondent /
defendant no.1 states that the son of the respondent / defendant no.1 was
implicated in a murder case and the respondent / defendant no.1 was busy in the
same.
15.
The aforesaid plea in the
application as well as urged today is without any particulars of dates and the
proceedings in the murder case. Moreover, the interaction of the respondent /
defendant no.1 with advocates in the murder trial if any at the contemporaneous
time should have made the respondent / defendant no.1 wiser and aware of the
manner in which cases are to be followed and should have wizened instead of
making the respondent / defendant no.1 negligent.
CM(M) 1002/2017 Page 4 of 6
16.
The learned ADJ is not found to
have dealt with the application in the correct perspective and has also
proceeded on the premise that opportunities to contest even if once given up
are to be granted at the asking. It is for this reason only that the
application has been decided vide the following order:
“Arguments heard on the
application of defendant no.1 U/Sec.151 CPC for giving opportunity to him to
cross-examine PW-1. The application has been filed after three years of the
date on which his right to cross-examine PW-1 was closed. However, on perusal
of statement of PW-1 recorded before Hon‟ble Court on 15.12.2008 as well as
report of Local Commissioner dated 24.05.2008, the application is allowed to
decide the case on merits subject to cost of Rs.15,000/- to be paid by
defendant no.1 to plaintiffs and also with direction to cross-examine PW-1 on
one and the only date i.e. on 07.09.2017 at 02:00 p.m. Cost be paid on the next
date of hearing.”
which is without dealing with the facts or the principles of law
applicable in this regard.
17.
Mere imposition of costs of
Rs.15,000/- and which the counsel for the respondent / defendant no.1 today
also states that the respondent / defendant no.1 is willing to pay, cannot
allow a litigant to so wash away his past sins and to purchase opportunities
from the Court.
18.
Merit is thus found in the
contention of the counsel for the petitioners / plaintiffs that discretion has
been wrongly exercised by the learned ADJ in favour of the respondent / defendant
no.1.
19.
The discretion is indeed found to
have been exercised by the learned ADJ, contrary to law and is thus found to be
perverse.
CM(M) 1002/2017 Page 5 of 6
20.
The petition thus succeeds.
21.
The order dated 24th August, 2017 impugned in this petition is set
aside.
22.
Resultantly, the application of
the respondent / defendant no.1 for cross-examination of PW1 of the petitioners
/ plaintiffs is dismissed.
23.
I refrain from imposing any costs on the respondent
/ defendant no.1.
24.
It is clarified that the learned
ADJ, while deciding the application stated to have been filed by the respondent
/ defendant no.1 under Order VII Rule 11 of the CPC, shall decide the same
without being influenced in any manner with the observations contained in the
earlier order dated 12th
September,
|
2017.
|
RAJIV SAHAI ENDLAW, J.
NOVEMBER 02, 2017
„gsr‟..
CM(M) 1002/2017 Page 6 of 6
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