SH BHARAT SINGH v. SH PRITHI SINGH & ORS

1. This petition under Article 227 of the Constitution of India impugns the order of the Trial Court dated 06.07.2013, by which the Trial Court rejected the request made on behalf of the petitioner/plaintiff for his crossexamination to be done in terms of his evidence by way of affidavit filed. Trial Court had closed the evidence of the petitioner/plaintiff by the order dated 13.09.2012 on account of the repeated non-appearance of the petitioner/plaintiff. 2014:DHC:7007

2. The relevant portion of the impugned order giving reasons for refusing to recall the order dated 13.09.2012 reads as under:- “Ld. counsel for plaintiff submits that plaintiff somewhere in February, 2012, on his way to Bihar, fell from the train in the midst of the journey and remained lost one and half months. The plaintiff’s mental ability has been diminished to certain extent due to injury suffered by him due to the fall. Ld. counsel submits that plaintiff has still not fully recovered and prays for consideration of his application on humanitarian grounds. There has been inordinate delay, incomplete and unsubstantiated facts and latches on the part of the plaintiff in filing of the application. The application filed by the plaintiff does not provide any detail or particulars about the alleged train journey, details of the injury or the treatment thereof and the period during which the plaintiff had undergone the treatment as such. Be that as it may, perusal of the record reveals that after the disposal of pending application, the matter was listed for cross-examination of PW[1] on 16.11.2011 and thereafter, on 14.02.2012. Even if the averments of the plaintiff are to be considered, he has furnished no explanation for his non-appearance on 16.11.2011 and 14.02.2012. The NDOH was fixed at 03.04.2012. If the plaintiff was not traceable, this fact was not brought to the knowledge of the court on this date or any date thereafter and adjournments were repeatedly sought only on the grounds of sickness of the plaintiff. After these two dates, three more opportunities were given to plaintiff to lead evidence subject to cost or Rs.5,000/- as directed by ld. Predecessor. Though the Ld. counsel or proxy counsel for plaintiff appeared on each and every date, the plaintiff was not available for cross-examination and the matter was adjourned on the ground of illness of the plaintiff. The perusal of the application itself reveals that application was drafted much prior to 07.12.2012 as the date of hearing mentioned on the top of the application is 07.12.2012, however the same got attested on 12.12.2012 and was consequently filed on the court on 21.12.2012. In view of the above discussion, the application stands dismissed”. (underlining added)

3. A reading of the aforesaid observations contained in the impugned order shows that about 5 opportunities were given to the petitioner/plaintiff to come for his cross-examination but the petitioner/plaintiff failed to do so. The case of the petitioner/plaintiff is that he fell from the train and thereafter, he could not contact his counsel because, he was away from his home for about one and a half months on account of failing memory. On the aspect pleaded of failing memory, the Trial Court notes that not even a single document had been filed with respect to the hospital treatment or illness or medical prescription etc etc and hence the court could not believe the case as set up by the petitioner/plaintiff.

4. In the present case, the petitioner/plaintiff claimed that he was dispossessed in the year 1988 with respect to the subject property which is a slum property of about 25 square yards.

5. Counsel for the petitioner requests for one last opportunity for cross-examination of petitioner/plaintiff, but, the counsel for the respondents vehemently opposed the request for the reason that from 1988 the respondents have been forced into litigation on account of the false suits which were initiated by the petitioner/plaintiff and actually the petitioner/plaintiff was never in possession of the suit property for him to claim that he was dispossessed.

6. I have thought long and hard on the aspect as to whether one opportunity should be given to the petitioner/plaintiff for his crossexamination. Unfortunately, the courts have to go as per the record available and court cannot go on the basis which is not even prima facie established. Trial Court notes that the petitioner/plaintiff has filed no proof whatsoever of his alleged fall from the train or of his treatment and which I have to agree as a correct conclusion. This Court therefore feels that five opportunities which were given hence could not be on account of the petitioner/plaintiff having suffered injuries on account of falling from the train and was, therefore, allegedly untraceable to even his own family members for about one and a half months.

7. In view of the above, I have no option but to dismiss this petition and it is accordingly dismissed. December 12, 2014 VALMIKI J. MEHTA, J. neelam