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HIGH COURT OF DELHI
Date of Decision: 03.08.2023
SHYAM SINGH ..... Petitioner
Through: Mr. Mahipal Singh Rajput and Mr. Harsh Rajput, Advocates
Through:
JUDGMENT
1. This is an application seeking advancement of the hearing dated 15.12.2023.
2. For the reasons stated in the application, the same is allowed and the matter is taken up for hearing as per the request of the Petitioner.
3. This petition filed under Article 227 of the Constitution of India impugns the order dated 22.12.2022 passed by Civil Judge, East District, Karkardooma Courts, Delhi (‘Trial Court’) in Civil suit no. 8874/2016 (old no. 122/2007)titled as RamaDeviv. ShyamSingh,whereby theapplication filed by thePetitioner under Order18 Rule17 of theCodeof Civil Procedure (‘CPC’), seeking the leave of the Court to recall and cross-examine all the plaintiff witness (‘PWs’) in respect of his counter claim, was dismissed.
3.1. The Petitioner is the defendant and the Respondent is the plaintiff in the civil suit.
3.2. In this petition, the Petitioner seeks an opportunity to recall and cross examine the plaintiff witnesses i.e., PW-2, Rama Devi and PW-3, Ravinder Kumar with respect to thereliefs sought by thePetitioner in the statementof counter claim.
3.3. The civil suit was instituted by theRespondent on 02.03.2007seeking relief of declaration ofownership with respect to the propertybearingno. B- 13, Ram Gali, North Ghonda, Delhi-110053 (‘subject property’).
4. On 27.07.2007, the Petitioner herein filed his written statement. It is stated thatalongwiththewritten statement, thePetitioneralso raised a counter claim and sought a decreeofdeclaration that thePetitioneris theowner ofthe subject propertyon thebasis of documents executed by themother-in-law of RespondentNo.1, which havebeen signedby thehusband ofRespondentNo. 1 as the attesting witness.
5. After completionofpleadings issueswereframedby theTrialCourt on 22.05.2009. The order dated 22.05.2009 reads as under: - “Suit No. 122/07 22.05.09 Present: Sh. D.D. Pandey counsel for the plaintiff. Sh. J.M. Akbar counsel for the defendant. Cost of Rs. 300/- paid. It is stated by the counsel for the defendant that he is adopting the previous WS. It is stated by the counsel for the plaintiff that he does not want to file replication. Admission denial of documents not pressed. I have perused the record. From the pleadings of the parties following issues are framed: -
1. Whether the plaintiff has no locus standi to file the present suit? OPD
2. Whether the suit is not maintainable in its present form? OPD
3. Whether the plaintiff is entitled to a decree of declaration as prayed? OPP
4. Relief No other issue arises or pressed. Now to come up for PE on 14.09.09. Advance copy of the affidavit be supplied to the counsel for the defendant at least 15 days prior to the assigned date.” (Emphasis supplied)
6. After theframingoftheissues, theRespondentled plaintiff’sevidence, which was concluded on 29.05.2013. The Petitioner herein duly cross examined the plaintiff’s witnesses. The matter was thereafter, listed for defendant’s evidence.
7. ThePetitioner herein examinedhimselfas DW-1 andfiled his affidavit of evidence and tendered his examination-in-chief. Thecross examinationof DW-1 was pending and at this stage, the Petitioner herein engaged a new counsel, who after perusing the record filed an application dated 01.06.2017 seeking framing of additional issues with respect to the reliefs sought by the Petitioner herein in the counter-claim and sought fresh examination of plaintiffwitnesses. Therelief soughtin the said application reads as under: “In view of the submissions made above it is respectfully prayed that this Hon’ble Court may be pleased to pass appropriate orders thereby framing issues with respect to the Counter Claim of the defendant and the evidence of the parties may be led afresh in this regard after framing of issues on the Counter claim of the defendant as the same is necessary in the interest of justice.”
8. The said applicationwas duly considered and disposed ofby the Trial Court vide detailed order dated18.08.2017. TheTrialCourt in the said order observed that the relief of declaration of ownership sought by the Petitioner in thecounter-claim willbeduly consideredas a partofissueNo. 4. TheTrial Court,however, declined to permit re-examination ofthe plaintiffwitnesses. The relevant portion of the order read as under: - “4. Thus, what the plaintiff and the defendant both claim is that they be declared the owner of the property identified as B-13, Ram Gali, North Ghonda, Delhi-53 and since relief is one of the issues, the claims of the plaintiff and the defendant shall be addressed under the issue of relief. So far as the issues of fact are concerned, they remain unaffected and plaintiff and the defendant have already led evidence on the issues. Plaintiffs evidence has already been closed. DW1/defendant has already been examined-inchief. Cross-examination of DW[1] is pending.”
9. The Court thus disposed of the application and listed the matter for further cross examination of DW-1 on 02.11.2017. The Petitioner herein accepted theorder proceeded to lead its evidence and examined DW-1, DW- 2, DW-3 and DW-4.
10. The learned counsel for the Petitioner states that the Petitioner has concluded the evidence and only proposes to examine a summoned witness as DW-5 and thereafter, defendant’s evidence will stand closed.
11. However, at this stage, on 26.08.2022, the Petitioner herein filed an application under Order 18 Rule 17 CPC seeking permission to recall and cross examine the plaintiff witnesses in respect of his counter-claim and referred to the order dated 18.08.2017. The Trial Court vide its impugned order dated 22.12.2022has dismissedthis application which reads as under:-
12. The learned counsel for the Petitioner during the course of his arguments has stated that the limited relief that the Petitioner seeks is an opportunity to recall and cross-examine PW-2, Rama Devi and PW-3, Ravinder Kumar with respect to the documents relied upon by the Petitioner in support of his counter-claim.
13. This Court has heard the arguments of the learned counsel for the Petitioner and perused the record.
14. This Court is of the opinion that there is no infirmity in the impugned order passed by the Trial Court. The documents, which the Petitioner relies upon in support of its counter claim is the defence of the Petitioner in the written statement to the claim set up by the plaintiffs for the relief of declaration of title. The Petitioner herein was granted sufficient opportunity between the period 2009 to 2013 to cross examine the witnesses of the Plaintiff on his defence.
14. The pleas raised in the present petition for re-examining the plaintiff witness is withoutany merit andit is apparentthatthePetitioner is seekingto fill up the lacunas,which have crept in duringthecross examination of PW- 2 and PW-3. It is evidentthatthePetitioneris seekingto revisit theorderdated 18.08.2017, where the similar relief was sought and declined by the Court. The said order passed five years ago was accepted by the Petitioner and has become final. The Petitioner has failed to explain what prevented him from raising these questions during the cross examination of PW-3 held prior to 29.05.2013.
15. Theonus to provethedocuments (purportedly executed by themotherin-law of Respondent No.1), which have been relied upon by the defendants is on the defendant and since the defendant has been given sufficient opportunitysince2017tilldate i.e., six (6)years to provethesaid documents, his prayer seeking recall of the PW-1 and PW-2 is without any merit.
16. This Court finds no merit in this petition. Accordingly, the petition is dismissed. Pending application(s), if any, stand disposed of.
MANMEET PRITAM SINGH ARORA (JUDGE) AUGUST 3, 2023/rhc/sk Click here to check corrigendum, if any