Full Text
HIGH COURT OF DELHI
Date of Decision: 13.08.2024
SAIJEE DEVELOPERS (P) LTD. .....Plaintiff
Through: Mr.Mudit Sharma, Adv.
Through: Mr.Amrita Sarkar, Adv. D-1 & D-2.
Mr.Rajesh Raina, Mr.Shubham Sharma & Mr.Rehmat Ali, Advs. for D-3 & D-4.
JUDGMENT
1. This application has been filed by defendant nos.[1] and 2, praying for access to the Suit Property, that is, Plot No. 79, Pocket 1, Jasola, New Delhi-110025 for conducting a valuation of the Suit Property and to bring on record a valuation report by a Government approved valuer.
2. The learned counsel for the applicants submits that pursuant to the Order dated 02.08.2019, this Court had appointed a Government authorised valuer, who in turn submitted a valuation report qua the Suit Property. However, the plaintiff herein had deposed a so-called expert witness as PW-2, whose report is contradictory to the report submitted by the Government approved valuer appointed by this Court. It is alleged that the report so furnished by PW-2 considers the value of construction as on 2012, and the said report gave a highly inflated value of the Suit Property. To counter the same, the applicants wish to examine a valuer, and for the said purpose, therefore, require access to the Suit Property for inspection by such valuer. The learned counsel for defendant nos.[1] and 2/applicants submits that such inspection would be required maximum for a period of two days.
3. The application is opposed by the learned counsel for the plaintiff/non-applicant, contending that by an Order dated 19.12.2023, this Court had granted 15 days’ time to the parties to file the list of witnesses. The defendants chose not to file the list of witnesses. Thereafter, the plaintiff filed the evidence by way of affidavit of the plaintiff as also of the PW-2, on 14.02.2024. PW-2 was crossexamined by the defendants on 22.05.2024 and 02.08.2024. He submits that it is now only as an afterthought, and in order to delay the adjudication of the Suit, that the present application has been filed by the applicants.
4. The learned counsel for the plaintiff submits that the plaintiff shall suffer grave prejudice in case the present application is allowed, as the plaintiff’s expert witness has already been examined, and he would not get an opportunity to give his comments on the report that may now be submitted by the so-called valuer to be produced by the defendants/applicants.
5. The learned counsel for defendant nos.[3] and 4 submits that the valuation report now filed through PW-2 gives the purported value of the Suit property not only as of 2012 but also of 2021. He submits that the same needs to be countered by the defendant nos. 3 and 4 and, therefore, an opportunity should be granted to the applicants to inspect the Suit Property and to have it valued.
6. I have considered the submissions made by the learned counsels for the parties.
7. In the present case, issues were framed by this Court vide its Order dated 19.12.2023. Issue No.
(x) reads as follows: “(x) Whether the plaintiff is entitled for a sum of Rs.2,21,50,000/- as damages for the amount spent by him on the suit property? OPP”
8. The valuation of the property is important to answer the said issue. The plaintiff, as noted hereinabove, filed an affidavit of PW-2, on 14.02.2024, claiming him to be an expert valuer. The said witness was cross-examined by the defendants on 22.05.2024 and 02.08.2024.
9. The applicants filed the present application on or about 03.07.2024, that is before the said witness had been fully crossexamined by them. The application was first listed before this Court on 09.07.2024. As the learned counsel for the plaintiff did not appear before the Court on the said date, in spite of advance service of the application, this Court issued notice of this application to the plaintiff. On 31.07.2024, the learned counsel for the plaintiff prayed for time to file a reply to the same. It is only, thereafter, that PW-2 was further cross-examined on 02.08.2024, and his cross-examination was concluded.
10. The plaintiff, therefore, was fully aware that the defendant nos. 1 and 2 wished to bring their own valuer to counter the report of PW-
2. The application of the defendant nos. 1 and 2 could not be decided in time only because the plaintiff chose not to appear on 09.07.2024, and thereafter, sought time from this Court to file a reply to this application on 31.07.2024. The plaintiff cannot seek benefit of his own defaults and obtain a march over the defendants by delaying the adjudication of the present application.
11. As one of the issues involved in the Suit, as reproduced hereinabove, is on the valuation of the Suit Property, the defendants must be given an adequate opportunity to prove their case.
12. Accordingly, the application is allowed. The plaintiff is directed to grant access to the defendants/applicants to the Suit Property along with the valuer.
13. At this stage, the learned counsel for the plaintiff submits that in the application, the applicants have not even disclosed the name of the so-called valuer who would be visiting the property.
14. This Court had also put to the learned counsel for defendant nos.[3] and 4 that whether he would also like to value the Suit Property through his own valuer.
15. The learned counsel for defendant nos. 3 and 4 submits that the said defendants do not wish to have the valuation of the property done; however, they would like to be present there when the valuer appointed by defendant nos. 1 and 2 visits the said property.
16. In my view, defendant nos. 3 and 4 need not be granted such permission as they do not wish to have their own valuer.
17. As far as the other objection of the learned counsel for the plaintiff is concerned, the equities can be balanced by directing defendant nos.[1] and 2/applicants to inform the plaintiff, through counsel, the name of the valuer who would be visiting the property and, in consultation with the learned counsel for the plaintiff, fix a date and time for such a visit by the valuer. During such visit, defendant no.1 shall be entitled to accompany the valuer to the Suit Property. The plaintiff shall grant access to the valuer and defendant no.1 for the said purpose. As stated by the learned counsel for defendant nos.[1] and 2/applicants, the inspection shall be completed within two days.
18. On completion of such a visit, defendant no.1 shall file the report of such valuer within a period of two weeks thereafter.
19. As PW-2 has already been examined, and the plaintiff is correct in his contention that PW-2 did not get an opportunity to comment on the report that may be filed by the valuer appointed by defendant nos.[1] and 2, therefore, the plaintiff is granted an opportunity to further examine PW-2, only qua the report that may be filed by the valuer appointed by defendant nos.[1] and 2. The learned counsel for the plaintiff submits that the plaintiff shall file a further additional affidavit of PW-2 in this regard.
20. The said affidavit shall be filed within a period of three weeks of receipt of a copy of the valuation report from defendant nos.[1] and
2.
21. PW-2 shall thereafter make himself available for the further cross-examination by defendant nos.[1] and 2, if they so require, before the learned Local Commissioner.
22. The learned Local Commissioner shall fix the dates for further cross-examination of PW-2 in consultation with the counsel for the parties.
23. The application is disposed of in the above terms.
NAVIN CHAWLA, J AUGUST 13, 2024/rv/VS Click here to check corrigendum, if any