Royal Brass House Pvt Ltd v. Rajesh Gupta

1. The impugned order, dated 31st

3. In the written statement filed by the petitioner, in response to the suit of the respondent, the petitioner placed reliance on a Bilti/Consignment Note 0129 No. 18649 dated 28 January 2022, passed by the learned Additional District Judge (“the learned ADJ”) disposes of an application filed by the petitioner, as the defendant in CS DJ 8651/2016 (Rajesh Gupta v. M/s. Royal Brass House Pvt Ltd) under Order XVIII Rule 17 read with Order XI Rule 14 read with Section 151 of the Code of Civil Procedure, 1908 (CPC), for recalling Mr. Perminder Kaushik, Relationship Manager of M/s Best Roadways Limited (BRL), who had deposed in the proceedings as DW-2.

2. Given the nature of controversy, no detailed reference to facts is necessary. th October, 2013. 2022:DHC:2436 Though the entire trial court record is not before this Court, learned Counsel are ad idem that the defendant had, in its written statement, sought to assert that the petitioner was relying on the said document, in its evidence, as representing goods carried by the petitioner on behalf of the respondentm through BRL. The Bilti was, however, a photocopy.

4. A Local Commissioner was appointed to record the evidence in the matter. The Local Commissioner issued summons to Mr. Perminder Kaushik, Relationship Manager of BRL to appear before him on 21st April, 2018, as DW-2. Mr. Kaushik appeared before the Local Commissioner on 21st April, 2018, as directed and on enquiry, was informed that his evidence was required in connection with the aforesaid biilti dated 28th October, 2013 whereunder, the petitioner’s goods had purportedly been transported.

5. The impugned order records the fact that on being informed about the nature of the evidence sought from him on 21st April, 2018, Mr. Perminder Kaushik (DW-2) sought a fortnight’s time to examine the records, as the Bilti related to 2013. Learned Counsel for the respondent submits that the recording, in the impugned order dated 31st January, 2022, of Mr. Kaushik having sought a fortnight’s time to examine the matter is incorrect, though they acknowledge that on 21st

6. It appears that the time within which the Local Commissioner April, 2018, Mr. Kaushik did seek “some time” to look into the records as they were old. was to conclude evidence, was to expire on 25th April, 2018, the Local Commissioner was not willing to grant any extended period of time to Mr. Kaushik and to examine the records and tender evidence.

7. The matter was, therefore, fixed on 23rd April, 2018. The impugned order also records the fact that learned Counsel for the petitioner had submitted that, on 23rd April, 2018, he would be unavailable as he had to attend a matter in another Court and had, therefore, sought that the matter be listed on 4th April, 2018. The learned Local Commissioner, however, declined the request and fixed the matter on 24th April, 2018.

8. On 24th April, 2018, therefore, there was no appearance of any Counsel on behalf of the petitioner, though Mr. Yogesh Ahuja, Director of the petitioner was present. Mr. Ahuja concluded his defence evidence, but reserved his right to move an appropriate application for recalling of defence evidence, if necessary.

9. The Local Commissioner submitted his report to the Court on 25th April, 2018.

10. It is at this stage that the petitioner moved an application under Order XVIII Rule 17 read with Order XI Rule 14 read with Section 151 of the CPC, seeking permission to recall DW-2, so that the Bilti dated 28th October 2013 could be proved.

11. The impugned order dated 31st January 2022 rejects the request.

12. The learned ADJ has noted, in the impugned order, that the examination-in-chief of DW-2 did not make any reference to the aforesaid Bilti dated 28th October, 2013 and that, in his crossexamination, DW-2 had admitted the suggestion put by learned Counsel for the respondent that the original record of the Bilti was not available with his company. The request for tracing out the record relating to the said Bilti was, as the learned ADJ records in the impugned order, made by DW-2 in cross-examination and not in examination-in-chief. The application seeking recall of DW-2 was, however, made for recording of his further examination-in-chief and not further cross-examination. The learned ADJ has further noted, in the impugned order, that the Bilti dated 28th

15. Mr. Amar Khera, learned Counsel for the respondent, has emphasized the fact that, on 28 October, 2013 did not bear the name of the defendant or reflect the amount to which the Bilti purportedly related, as admitted by DW-1 in cross-examination.

13. For these reasons, the learned ADJ has deemed it appropriate to reject the application seeking recalling of DW-2.

14. I have heard Mr. J.S. Malik, learned Counsel for the petitioner and Mr. Amar Khera, learned Counsel for the respondent. th October, 2013, Mr. Yogesh Ahuja had voluntarily closed the defense evidence. He also submits that a bare glance at the Bilti, for the proving of which Mr. Ahuja was being sought to be recalled into the witness box, reveals that it does not support the case of the petitioner. He also relies on the findings of the learned ADJ and submits that the decision of the learned ADJ, not to recall DW-2 for re-recording of his evidence, cannot be said to suffer from any such infirmity and illegality as would justify interference by this Court under Article 227 of the Constitution of India.