Kiran Aggarwal v. Jawahar Lal Aggarwal & Anr

1. The appellants/defendants have filed the present Chamber Appeal against the order dated 12.01.2015, passed by the learned Joint Registrar, whereunder the right of the defendants to lead the evidence was closed.

2. Before considering the submissions of the counsels for the parties, it is necessary to recapitulate the relevant sequence of events in the suit.

3. After the pleadings were completed, issues were framed in the 2015:DHC:4056 suit on 30.11.2012. On the said date, the parties were directed to file their list of witnesses within four weeks and the plaintiff was directed to file the affidavits by way of evidence within six weeks thereafter. Further, the parties were directed to appear before the learned Joint witnesses. The plaintiff had led her evidence, which was closed in the affirmative on 12.08.2013 and on the said date, the defendants were directed to adduce their evidence on 02.12.2013 and in the meantime, they were directed to file their chief affidavits within four weeks.

4. The defendants filed their list of witnesses containing four witnesses, namely, the defendants No.1 and 2 and their son and the daughter-in-law. The chief affidavits of the four witnesses were filed, but the defendants did not turn up before the learned Joint Registrar on 02.12.2013. On the said date, at the request of the counsel for the defendants, the case was adjourned to 17.04.2014, for recording the defendants’ evidence. On 17.04.2014, the Joint Registrar was on leave and the case was adjourned to 29.05.2014.

5. On 29.05.2014, it was noticed that none of the defendants’ witnesses were present and the counsel for the defendants had sought an adjournment on the ground that the arguing counsel was indisposed. In the interest of justice, last and final opportunity was granted to the defendants to lead their evidence, failing which it was made clear that their right to lead the evidence shall stand closed. With these directions, the case was adjourned to 04.09.2014.

6. On 04.09.2014, yet again, the defendants’ witnesses did not turn up. Counsel for the defendants sought to explain the absence of DW-1 by stating that he was confined to bed at Bangalore. Further, as both the parties had sought intervention through mediation, the case was referred to the Delhi High Court Mediation and Conciliation Centre and the defendants’ evidence was adjourned to 12.01.2015. The parties were unable to negotiate a settlement before the Mediation Centre. On 12.01.2015, yet again, the defendants failed to turn up for their cross-examination. As a result, their right to lead the evidence was closed by the learned Joint Registrar.

7. Counsel for the defendants states that the defendants No.1 and 2 are senior citizens and the defendant No.1 had suffered a heart attack on 04.12.2014 whereafter, he had to undergo a surgery. He states that the defendant No.2(wife of defendant No.1) has been busy attending to the defendant No.1 and they have been residing with their son and daughter-in-law at Bangalore. He submits that the absence of the defendant No.2 and third witness, i.e., the son of the defendants was bonafide and adds on instructions, that now the defendants wish to confine the evidence to the deposition of Mr. Sameer Aggarwal (DW-3) alone and if one more opportunity is granted for the said purpose, the defendants shall ensure that the said witness is present on the date that may be fixed by the Joint Registrar for his cross-examination.

8. Counsel for the plaintiff states that if the Court is inclined to allow the present Chamber Appeal and the application for condonation of delay, then the defendants must be mulcted with costs for delaying the proceedings in the suit for almost two years. He submits that the plaintiff has instituted the accompanying suit for specific performance of an Agreement to Sell dated 17.01.2011 in respect of an immovable property and the total agreed sale consideration was `50 lacs, out of which, the plaintiff had paid a substantial amount of `35 lacs towards part consideration, and the balance amount was deposited in Court in terms of the order dated 15.11.2011. As a result, he plaintiff is out of pocket of a huge amount and at the same time, the defendants have been dragging their feet in the suit only to frustrate her genuine claim.

9. Having regard to the submissions made by the counsel for the parties and taking into consideration the explanation offered by the counsel for the defendants, the delay of 61 days in filing the Chamber Appeal is condoned and the appeal is allowed. Subject to costs of `20,000/- to be paid to the plaintiff through counsel on or before the date fixed before the Joint Registrar, last and final opportunity is granted to the defendants to produce DW-3 for his cross-examination on a date and time that shall be fixed by the learned Joint Registrar. It is made clear that if the witness does not turn up on the date fixed, then the order dated 12.01.2015 shall stand revived.

10. The Chamber Appeal and the application are disposed of. (HIMA KOHLI) MAY 05, 2015 JUDGE rkb