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HIGH COURT OF DELHI
CM(M) 1163/2023 & CM APPL. 37556/2023
Date of Decision: 09.10.2023 M/S AKUMS DRUGS AND PHARMACEUTICALS
LIMITED ..... Petitioner
Through: Mr. Abhishek Sandillya, Advocate alongwith Mr. Shantanu, AR
Through: Mr. M.C. Kochhar,Advocate for R-1
JUDGMENT
1. This Petition filed under Article 227 of the Constitution of India impugns the order dated 19.04.2023 passed by ADJ-05, South District, Saket Courts, New Delhi (‘Trial Court’) in CS (DJ) No. 5896/2016 (‘civil suit’) titled as M/s D.M. Systems (P) Ltd v. M/s Akums Drugs Pharmaceuticals Ltd, whereby the Trial Court dismissed an application filed by Petitioner herein i.e., defendant no.1under Order XVI Rule 1(3) of the Code of Civil Procedure, 1908 (‘CPC’) seeking the permission of the TrialCourt to examineSh. Praveen Soni as additional witness in civil suit.
1.1. The Petitioner herein is the original defendant no.1 and the Respondent No.1 is the original plaintiff.
1.2. The civil suit has been filed for recovery of a sum of Rs. 3,33,326/alongwith the interest for payment towards sale of software developed by defendant no. 2. The suit was filed in March, 2013 and is presently at the stage of recording of evidence.
1.3. The defendant no.1 filed its written statement on 06.06.2013. The written statement was accompanied with a counter claim praying for a refund of Rs. 2,36,184 and damages for the loss allegedly suffered by the defendant no.1.
1.4. The plaintiff evidence stands concluded and substantial evidence of the defendant no. 1 has also been led. The defendant no. 1 filed its list of witnesses on 24.09.2014 andas per thesaid list thedefendant no. 1 has been permitted to lead evidence of its Authorised Representative Mr. Vikas (CCW-1), Mr. Rohit Tiwari, IT Department (CCW-2) and Ms. Kusum Sharma, HR Department.
1.5. The defendant no. 1, in addition, wants to lead evidence of one Mr. Praveen Soni, from Business Development department. His name was not mentioned in the list of witnesses and his role is not evident from the pleadings. The Trial Court by the impugned order has dismissed the application.
2. The learned counsel for the Petitioner states that the Petitioner proposesto lead evidence of Mr. Praveen Soni. He states that Mr. Soni is a materialwitnessand ifhe is precludedfrom leadinghis evidence it will have an adverseeffect on the weight of evidence led in support ofthe defence. He statesthatan appropriate application for leading his evidence was filed on 23.01.2019under Order XVI Rule 1(3) read with Section 151 of the CPC.
2.1. He states that thePetitionerherein has alreadyfiled evidence affidavit of a competent witness Mr. Rohit Tiwari (CCW[2]) and during the cross examination of the said witness it became apparent that the Respondent No.1 herein considered Mr. Praveen Sonito be a material witness and nonproduction of Mr. Praveen Soni would be argued against the Petitioner duringfinalarguments. Hestatesthatin these circumstances, the Petitioner herein filed an applicationfor producingMr. Praveen Soni as an additional witness.
2.2. He states that therelevanceof Mr. Praveen Soniis demonstrated from thecross examinationofCCW-2. He statesthattheaffidavit evidenceof Mr. Praveen Soni has been filed before the Trial Court.
3. In reply, learned counselfor theRespondentNo.1 states at the outset that Mr. RohitTiwari(CCW[2])who has filed his evidence affidavit and has been cross examined at length, has already lead evidence on each of the facts on which Mr. Praveen Soni is proposed as an additional witness. He statesthattherefore, leadingevidenceof Mr. Praveen Sonion the very same facts is not justified and would in fact enable the Respondent to overcome the loopholes in defence of the Petitioner, which were brought out in the cross examination of Mr. Rohit Tiwari. 4.[1] He states that he is, however, fairly willing to concede that the suggestionsgiven by Respondent No.1to Mr. Rohit Tiwari (CCW[2]) to the effect that thePetitioner is withholdingMr. Praveen Soni may be struck off from the record. 4.[2] He states that a comparisonofthe evidence affidavit tendered by Mr. Rohit Tiwari, CCW[2] and evidence affidavit of Mr. Praveen Soni would show that they are identical. He states that Mr. Soni relies upon the documents, which have already been exhibited by CCW[2]. He states thereforeMr. Praveen Soni has no different aspect to depose on. He relies uponthetabularcomparisonofthe contentsoftheaffidavit filed in his reply to this petition.
4. This Courthas considered thesubmissionsoftheparties and perused the record.
5. Thereis no disputethat the contents of the evidence affidavit of Mr. Praveen Soni areidenticaland near similarto the evidence affidavit already tendered by Mr. Rohit Tiwari (CCW[2]). There is also no dispute that Mr. Rohit Tiwari (CCW[2]) is competent to depose with respect to the transactionswhich arethesubject matterofthe claim. Further,in view of the submission made by the counsel for the Respondent No.1 that the suggestionsgiven to Mr. Rohit Tiwari(CCW[2])thatthePetitioner herein has withheld Mr. Praveen Soni be taken off the record, this Court finds no reasons to permit leading of evidence by Mr. Praveen Soni.
6. This Courthas also perused the impugned order passed by the Trial Court on 19.04.2023. The material portion whereof reads as under:
7. In the opinion ofthis Court, thereis no infirmity in thesaid impugned order especially considering the fact that Mr. Rohit Tiwari (CCW[2]) who was a competentwitness on behalfof thePetitioner hasalreadystepped into the witness box and deposed.
8. This Court has also perused the cross examination of Mr. Rohit Tiwari (CCW[2]) placed on record as Annexure P-2 to the rejoinder. A perusalofthesaid cross examinationshowsthat Mr. Rohit Tiwari (CCW[2]) has asserted that he is as competent as Mr. Praveen Soni to depose on the facts of the matter and he is well-versed with the transactions between the parties.
9. This Courtalso finds merit in the submissions of the counsel for the Respondent No.1 that in view of the contents of the evidence affidavit of Mr. Praveen Soni, there are no new facts or no new documents which are sought to be proved by Mr. Praveen Soni.
10. The statementofthe learned counselfor theRespondent No.1 that all suggestionsgiven to Mr. Rohit Tiwari(CCW[2]) in the cross examination to theeffect that Petitioner has withheld Mr. Praveen Sonior that Mr. Praveen Soniwas a better witnessto appear, standstruckoff from therecord and will not be read in evidence at the time of the final arguments. This is even otherwisemerited in view of the fact that though the Petitioner is willing to lead theevidence of Mr. Praveen Soni, it is the Respondent No.1 who has opposedleadingof any furtherevidenceso as to ensure expeditious trial. It is accordingly ordered, that Respondent No. 1 will be precluded from contending at the final arguments stage that Petitioner has withheld Mr. Praveen Soni and allsuggestions/questions to theCCW[2] to this effect stand struck off.
11. Accordingly, thepresentpetition is dismissed. Pending application is disposed of.