M/S. SALSONS IMPEX PVT. LTD. v. SMT. SURUCHI BHARDWAJ

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. + C.M.(M) No.845/2014 and C.M. No.15180/2014 (stay)

2. This petition under Article 227 of the Constitution of India is filed by the petitioner/defendant/tenant impugning the orders of the trial court dated 13.8.2014 and 2.9.2014 by which the right of the petitioner/defendant to cross-examine the PW-1 was closed and the order 2014:DHC:4657 dated 13.8.2014 closing right of the petitioner/defendant to cross-examine the PW-1 was not recalled. The present case is a symptomatic of those litigants who unnecessarily drag on cases of landlords, such as the respondent in the present case, with respect to the claim for damages/mesne profits pertaining to the tenanted premises.

3. A reading of the impugned order shows that the petitioner/defendant took repeated opportunities, i.e four in number, and still failed to complete the cross-examine of PW-1. Cross-examination was done on two dates and which in my opinion should have been sufficient in a suit like this where the issue only of damages remain and qua which issue in any case the petitioner/defendant will lead its evidence pertaining to the rate of rent prevailing in the area for determining the mesne profits. The petitioner/defendant not only unnecessarily took adjournments, and in fact when the trial court fixed two specific dates at specific timings, even those opportunities were not availed of. Trial court therefore was forced to close the right of the petitioner/defendant to cross-examine PW-1.

4. I may state that PW-1 has been substantially cross-examined and was only to be further cross-examined and thus surely the issue of damages would be looked into as per the entire evidence which is led in this case including that of the petitioner/defendant, and non cross-examination will be only one of the aspects which will be seen in the case alongwith other aspects. Impugned order shows the gross malafides of the petitioner/defendant in not utilizing opportunities for cross-examination, as also the fact that different Advocates appeared at different points of time and applications for recalling of the order dated 13.8.2014 was filed by an Advocate whose Vakalatnama also did not appear on record. The relevant observations in the impugned order read as under:- “Perusal of the record shows that issues were framed in the present case on 12.09.2013. Affidavit of PW[1] was also filed on same day on behalf of plaintiff and a copy was also supplied to Ld. Counsel for the defendant. On 18.11.2013, PW[1] tendered his affidavit in evidence. The cross-examination of the witness was, however, deferred at request of the defendant. An opportunity was granted to the defendant to cross-examine PW[1] subject to cost of Rs. 1000/-. On 15.01.2014, neither was the cost paid nor was the witness cross examined by the defendant. Rather an adjournment was sought by the proxy counsel for the defendant on the ground that the main counsel was busy in some other Court. It was only on 10.05.2014 that cost was paid by the defendant and PW[1] was partly crossexamined by the Ld. Counsel for the defendant. The witness was further cross-examined on 17.05.2014. However, the perusal of order sheets shows that on both these occasions, the Advocates who were present on behalf of defendant to cross-examine PW[1] were Sh. Aditya/Adilya Gaggar and Sh. Manish Kaushik. On 17.05.2014, Sh. Aditya Gaggar for the defendant appeared as a proxy counsel for the defendant and submitted that he had the instructions of the main counsel for the defendant as well as defendant to cross-examine the witness. On this date, it was directed that the remaining crossexamination of PW[1] shall be conducted on 24.07.2014 at 11.00 AM. On 24.07.2014, again a proxy counsel, namely, Sh. Pankaj Arora for the defendant appeared who submitted that the main counsel was busy in Hon'ble High Court of Delhi and would not be able to appear before 12.30 PM. The proxy counsel for the defendant was not sure whether or not the main counsel would appear in the Court even after

12.30 PM. In these circumstances and at request for proxy counsel for the defendant, a time was also fixed for further cross-examination of PW[1] on the next date of hearing. The case was, accordingly, listed for 13.08.2014 at 11.30 AM. It was categorically directed that in case Ld. Counsel for the defendant is not present on next date of hearing at the time fixed, opportunity of the defendant to further crossexamine PW[1] shall be closed. On 13.08.2014, matter was taken up at 11.30 AM and till 11.45 AM Ld. Counsel for the defendant was not present to cross examine the PW[1]. Instead another proxy counsel, namely, Sh. Kunal Sharma for defendant appeared. In these circumstances, the opportunity of defendant to cross-examine PW[1] was directed to be closed. In the application U/sec. 151 CPC, it is submitted that the main counsel for the defendant, namely, Sh. Dhruv Gupta appeared at

12.20 PM on 13.08.2014 to cross-examine the PW[1]. The application U/sec. 151 CPC has been filed by Sh. Dhruv Gupta, Advocate under his signatures with his supporting affidavit. It has been clarified during arguments by Ld. Counsel for defendant Sh. Dhruv Gupta that he himself is the main counsel for the defendant. Vakalatnama filed on behalf of the defendant on 24.01.2013 shows that even though the names of 10 Advocates have been mentioned in the Vakalatnama including that of Sh. Dhruv Gupta, it has been signed only by Sh. Khattar, Advocate. Sh. Dhruv Gupta is, therefore, not the main counsel authorised to represent the defendant in the present case. He is at best a proxy counsel. There is also nothing to show that Sh. Dhruv Gupta had the authority of the defendant to move the application under consideration on its behalf. During the course of arguments, it has been conceded that the Advocate who signed Vakalatnama for defendant, namely, Sh. Vishal Khattar is no longer representing the defendant in the present suit and is not part of the group of Advocates mentioned in the above said Vakalatnama. Such a conduct as detailed above does not inspire the confidence of the Court. The Court is also convinced that sufficient opportunities have already been granted to the defendant to cross examine the PW[1]. In view of the above discussion, the application U/sec. 151 CPC of the defendant is dismissed.”

5. In view of the above, I do not find any illegality in the impugned order dated 13.8.2014. The trial court was justified in not recalling the order dated 13.8.2014 closing right of the petitioner/defendant to continue the cross-examination of PW-1.

6. Dismissed.

SEPTEMBER 15, 2014 VALMIKI J. MEHTA, J Ne