Shally v. Ram Mohan Gautam

1. An application by the petitioner, as the defendant in CS 203/18 (Ram Mohan Gautam v. Shally), preferred under Order XVI Rule 1(3) of the Code of Civil Procedure, 1908 (CPC) stands dismissed by the learned Additional District Judge (“the learned ADJ” hereinafter) vide the impugned order dated 20th July 2022.

2. Consequent to completion of pleadings and framing of issues, the respondent, as the plaintiff in the suit, chose only to lead his sole evidence as PW-1.

3. No list of defence witnesses was filed by the petitioner, as the defendant in the suit. Nonetheless, the learned ADJ allowed the recording of evidence of the petitioner as DW-1.

4. After recording of evidence of DW-1 was complete, the petitioner moved the application, under Order XVI Rule 1(3) of the CPC, which stands disallowed by the impugned order dated 20th July

2022.

5. By the said application, the petitioner sought to examine 12 witnesses. It was further averred that, if the said witnesses were not examined, the petitioner would suffer irreparable loss and injury. It is necessary to reproduce para 3 of the application, thus: “That defendant want to examine the following witnesses are necessary to be examined in support of her defence for this case:i) Husband of Defendant namely Sh. Pradeep Kumar, to prove the admissibility and relevance of call recordings along with its true typed version to which is annexed at page no 21 to 80 of WS. ii) Property dealer namely Sh. Damodar Pant, to prove his statement that he brought Plaintiff to Defendant and her husband for purchasing of her flat and lately Plaintiff created a conspiracy with intention to sold the flat of Defendant to someone else from. where he is getting excessive amount but when other party refused to buy said flat, then Plaintiff stepped out from the conditions of bayana agreement. iii) Employee of Defendant husband namely Rajesh Kumar who worked at RP Enterprises, T- 2536, IInd Floor, Guru Nanak Market, Naiewala Karol Bagh, Delhi to prove his statement that, Plaintiff along with his wife visited to abovesaid shop for extending the execution period of Bayana Agreement. iv) Employee of Defendant husband namely Rajesh Phawa who worked at RP Enterprises, T- 2536, Hnd Floor, Guru Nanak Market, Naiewala Karol Bagh, Delhi to prove his statement that, Plaintiff along with his wife visited to abovesaid shop for extending the execution period of Bayana Agreement. v) Record Clerk/ Ahlmad of Court of Ms. Saloni Singh, MM, Shahadra, Karkardooma, Delhi along with complete judicial file of the matter titled as "Shruti Bagde versus Ram Mohan Gautam" vide Ct Case No. 1664 of 2018 u/s 138 NI Act, to prove that Plaintiff is a habitual offender and the also cheated Shruti Bagde with the malafide intention to sold the flat of Defendant to her. vi) Record Clerk/ Ahlmad of Court of Ms. Saloni Singh, MM, Shahadra, Karkardoo1na, Delhi along with complete judicial file of the matter titled as "Ram Mohan Gautam versus Shruti Bagde" vide Ct Case No. 1463 of 2018 u/ s 200 Cr.P.C. LDOH- 30.05.2022, to prove that Plaintiff is a habitual offender and he also cheated Shruti Bagde with the malafide intention to sold the flat of Defendant to her. vii) Record Clerk/ Ahlmad of Court of Ms. Manjusha Wadhwa, ADJ, Shahadra, Karkardooma, Delhi along with complete judicial file of the 1natter titled as "Ram Mohan Gautam versus Naveen Kumar" vide Civil Suit No. 373 of 2020 LDOH- 13.101.2022, to prove that Plaintiff is a habitual offender and he used to enter into false & fabricated Bayana Agreement and did not execute it further with the sole intension to extort money from innocent people. viii) Record Clerk/ Ahlmad of Court of Ms. Saloni Singh, MM, judicial file of the matter titled as "Sangeeta Bagde versus Ram Mohan Gautam" vide CL Case No. 1670 of 2018 u/s 419/420 IPC, to prove that Plaintiff is a habitual offender and he also cheated Sangeeta Bagde with the malafide intention to sold the flat of Defendant lo her. ix) Record Clerk/ Ahlmad of Court of Ms. Saloni Singh, MM, versus Darnodar Pant" vide Ct Case No. 1740 of 2018 u/s 200 Cr.P.C., to prove that Plaintiff is a habitual offender and he also cheated Shruti Bagde with the malafide intention to sold the flat of Defendant to her. x) Record Clerk/ Ahlmad of Court of Ms. Saloni Singh, MM, versus Jashpal Singh" vide Ct Case No. 467402 of 2014 u/s 138 NI Act Disposed on dated 22.09.2014, to prove that Plaintiff is a habitual offender and he used to enter into false & fabricated Bayana Agreement arid did not execute it further with the sole intension to extort money from innocent people. xi) Record Clerk/ Clerk of SHO, police station Nandnagri, Delhi-- 110093 along with complete record complaint dated 02.05.2018 sent via speed post vide postal receipt No. ED 723070445IN Dated 07.05.2018 made by Defendant (Shally). xii) Record Clerk/ Clerk of DCP, North-East District, Seelampur, Delhi- 110053 along with complete record complaint dated 02.05.2018 sent via speed post vide postal receipt No. ED 723070321 IN Dated 07.05.2018 made by Defendant (Shally).”

6. The aforesaid application, as already noted, stands dismissed by the learned ADJ by the impugned order dated 20th July 2022, which read thus: “By way of this order, I shall dispose of the application of the defendant U/o 6 rule 1(3) CPC filed on 16.04.2022. Counsel for defendant submits that on 07.04.2022, the defendant’s examination was completed and the matter was posted for remaining evidence. She submits that defendant desires to examine as many as twelve witnesses in support of defendant’s evidence. Shu submits that the defendant shall suffer irreparable loss if the application is not allowed. Counsel for the defendant has relied upon the judgment by the Hon’ble Supreme Court in Mange Ram v. Brij Mohan & Ors., decided on 03.08.1983. Counsel for plaintiff has opposed the application by putting forth his submissions straightway without filing reply to the same and submits that application is nothing but another ploy to delay the proceedings which are pending since the year 2012. He submits that application lacks grounds as to the purpose or relevancy of the witnesses sought to be examined nor is there any averment in the written statement. He submits that the matter was pending for evidence of defendant since 02.03.2021 and the application is filed after lapse of more than a year and deserves dismissal. I have heard respective submissions addressed by either side in the light of relevant statutory provisions of CPC. Sub-rule (1) of Rule 1 of order XVI casts an obligation on every party to a proceeding to present a list of witnesses whom it proposes to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. Sub-rule (2) requires that the parties seeking the assistance of the Court for procuring the attendance of a witness must make an application stating therein the purpose for which the witness is proposed to be summoned. Sub-rule (3) confers a discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Adverting to the facts in present case, the witnesses sought to be recalled were not part of list of witnesses filed after the issues were settled by the Court. Furthermore, the application does not show any reason much less plausible one to summon the witnesses. There is no reason other than one mentioned in para 4 of application i.e. defendant shall suffer irreparable loss. In such a scenario the reliance upon the judgment in Mange Ram v. Brij Mohan & Ors., is misplaced one being inapplicable to factual matrix. The defendant never made any reference to the documents for which the witnesses are now to be summoned. I find no reason as to why the court should allow the application at a belated stage when the matter is at the fag end of trial and defendant has remained unable to satisfy the court about the relevancy or the purpose of examining witnesses. In such circumstances, the application seeking summoning of witnesses is just to prolong the proceedings and a dilatory tactic, the same is sans any merit and deserves dismissal. Hence, dismisses. The defendant was directed to deposit costs but has not complied with the same. The matter shall be taken up for final arguments. Deposition of cost by defendant is a condition precedent for his submissions.”

7. The observation of the learned ADJ, that “the witnesses sought to be recalled were not part of list of witnesses filed after the issues were settled by the Court” is clearly erroneous on facts. No list of witnesses was filed by the petitioner, as the defendant, after settlement of issues. Nor did the application of the petitioner seek to recall any witness.

8. The protocol envisaged by the CPC, with respect to summoning and attendance of witnesses, as contained in Order XVI, requires both sides to file their respective list of witnesses, not later than 15 days after settlement of issues, as contained in Order XVI Rule 1, which reads thus:

9. The afore-extracted rule envisages filing of lists of witnesses by both parties not later than 15 days after settlement of issues. Rule 1(2) of Order XVI requires the party, desirous of obtaining summons for the attendance of any person, to file an appropriate application stating the reason for which the summons are sought.

10. Order XVI Rule 1(3) envisages a request, by a party, to call a witness other than the one whose name figures in the list of witnesses filed under Order XVI Rule 1(1). Where, therefore, no list of witnesses is filed under Order XVI Rule 1(1), Order XVI Rule 1(3) would have no application.

11. As such, the application filed by the petitioner was, strictly speaking, not maintainable under Order XVI Rule 1(3).

12. The learned ADJ has, inadvertently, allowed the recording of the evidence of the petitioner as DW-1 without, in the first instance, calling upon the petitioner to file a list of witnesses as required by Order XVI Rule 1(1). The application of the petitioner, for summoning 12 more witnesses apart from DW-1 could not, therefore, be examined under Order XVI Rule 1(3). It had necessarily to be treated as the first application by the petitioner setting out the list of witnesses whose evidence the petitioner desired to lead.

13. The observation, by the learned ADJ, that the said 12 witnesses were not in the list of witnesses filed after issues were settled by the Court is not, therefore, correct, as already noted hereinbefore.