Dipika Malhotra v. Neera Grover & Anr.

1. This Petition filed under Article 227 of the Constitution of India impugns the order dated 03.08.2023 passed by the Additional District Judge, Tis Hazari Courts, New Delhi (‘Trial Court’) in CS. No 601/2022 titled as “Neera Grover vs Ritesh Grover & Anr” whereby, the Trial Court dismissed the application filed by the Petitioner under Order 18 Rule 17 Code of Civil Procedure (‘CPC’) for recalling of the plaintiff-witness.

1.1. For the sake of convenience, the parties are being referred to as per their original status and rank before the Trial Court.

1.2. The Petitioner herein is defendant no.2 and Respondent No.1herein is the plaintiff in the suit.The civil suit has been filed by the plaintiff for permanent injunction against the defendants.

2. At the outset, the learned counsel for the defendant states that in this petition he is seeking a limited relief for recalling PW-1 i.e., the plaintiff herself for further cross-examination.

2.1. He states he is not pressing his relief in this petition with respect to the cross-examination of PW-2 and PW-3.

3. The learned counsel for the Respondent who appears on advance notice states that he is opposed to any grant ofany further opportunity to the Petitioner.

3.1. In this regard, he relies upon the proceedings of the orders dated 08.07.2022, 08.09.2022, 16.10.2022, 17.11.2022, 24.11.2022, 02.05.2023 and 06.06.2023 to contend that the relief sought in the present petition is not bona fide.

3.2. He states that the application seeking recall of PW-1 has been filed only to delay/defer leading defendant’s evidence by the Petitioner herein.

4. This Court has considered the submissions of the parties and perused the orders of the Court.

5. It is a matter of record that PW-1 tendered her evidence by way of an affidavit on 22.11.2021. Though, the witness i.e., PW-1, was present, adjournments were repeatedly sought by the defendant on 08.07.2022, 08.09.2022 and 06.10.2022 and no cross-examination was conducted.

6. Thereafter, on 17.11.2022, PW-1was partially cross-examined and the defendants right to further cross-examination PW-1 was closed on 24.11.2022. The plaintiff, thereafter, examined PW-2 and PW-3 and closed its evidence on 02.05.2023. The defendant without any demur crossexamined PW-2 and PW-3 and did not raise any concern about her right to further cross-examine PW-1 on these dates.

7. The matter was listed before the Trial Court for filing of Petitioner’s evidence on 06.06.2023 and it is only at this belated stage that the defendant filed an application seeking recall of PW-1.

8. The Trial Court vide order dated 03.08.2023 after perusing the record and after examining the conduct of the party has returned a finding that the defendant has filed an application under Order 18 Rule 17 only to delay the proceedings. The operative portion of the impugned order read as under:

9. This Court has been informed that the matter is listed today i.e., 04.09.2023 for filing of evidence by the defendant. This Court has been informed that the Petitioner herein has elected not to file its affidavit by way of evidence till date. And, now the matter before the Trial Court has been adjourned to 04.12.2023 again for filing of defendant’s evidence.