Sardar Gurbachan Singh & Ors. v. Sardar Avtar Singh & Ors.

1. The applicants / defendants no.1 and 3, by this application, after closure of evidence in this suit in terms of order dated 8th February, 2019, seek to summon and examine (i) Clerk from Indian Overseas Bank, Janpath, New Delhi; (ii) Clerk from State Bank of India, Overseas Branch, Vijaya Building 17, Barakhamba Road, New Delhi; (iii) Clerk from Dena Bank, 3 Mangal Bhawan Arya Samaj Road, Karol Bagh, New Delhi; and, (iv) Clerk from Punjab National Bank, Minto Road, New Delhi.

2. The counsel for the applicants / defendants no.1 and 3 argues that the said witnesses are necessary in this suit, for possession and Counter Claim for specific performance, to prove payments made by the defendants no.1 CS(OS) 82/1997 2019:DHC:1736 and 3 counterclaimants to the plaintiffs in terms of the Agreement to Sell of which specific performance is sought.

3. The suit, as aforesaid was listed last before this Bench on 8th February, 2019 in terms of earlier order dated 11th October, 2018. The same counsel who appears for applicants/defendants no.1 and 3 today, on that date made a statement that only one more witness remained to be examined and will be examined on 12th March, 2019; though the counsel for the plaintiff on that date also opposed the grant of any further time to defendants no.1 and 3 for leading evidence, stating that the plaintiffs’ evidence stood concluded in the year 2010 and since then evidence of the applicants/defendants no.1 and 3 was being recorded, but in the order dated 8th February, 2019 liberty was granted to the applicants/defendants no.1 and 3 to produce their sole witness remaining to be examined at their own responsibility on 12th March, 2019 and it was ordered that thereafter the evidence shall stand closed.

4. The counsel for the applicants/defendants no.1 and 3 states that this application being IA No.3611/2019 has been filed after 8th February, 2019 and was listed before the Joint Registrar on 12th March, 2019.

5. In the application, it is stated that the witnesses now sought to be examined are mentioned in the list of witnesses.

6. There is no explanation whatsoever as to why the counsel for the applicants / defendants no.1 and 3 on 8th February, 2019 made a statement that only one witness remained to be examined and did not state that the witnesses aforesaid also remained to be examined. There has to be some sanctity to the court proceedings. The Court acts on the basis of statements made by counsels and unless such statements are responsibly made, the suits will continue to languish, as this suit has since the year 1997. Considering that the Counter Claim of the defendants no.1 and 3 is for specific performance of an Agreement of Sale of immovable property and qua which claim Section 16(c) of the Specific Relief Act, 1963 requires the person seeking the relief to be ready and willing not only prior to claiming the relief but throughout, till the execution of the Sale / Transfer Deed in pursuance to the decree if any passed, such conduct of the defendants no.1 and 3 is inexplicable.

7. The fact, that no weightage is sought to be given to the statements made by the counsels in the Court even if recorded in the Order, is evident from the counsel for the applicants / defendants no.1 and 3 not deeming it appropriate to, in the application give any explanation whatsoever for not informing the Court on 8th February, 2019 that besides the witness for whose examination adjournment was taken on that date inspite of opposition of the plaintiff, other witnesses were also to be examined.

8. A perusal of the order sheet shows that i) the evidence of the plaintiff was closed on 9th April, 2010 and the suit notified for evidence of the applicants / defendants no.1 and 3 on 22nd November, 2010; ii) the applicants / defendants no.1 and 3 filed an application under Order XVIII Rule 17 of the CPC which came up before the Joint Registrar on 19th November, 2010; iii) on 22nd November, 2010, the Joint Registrar was not available and the suit notified to 7th January, 2011; iv) the order dated 7th January, 2011 records that the defendants till then had neither filed affidavits by way of evidence nor was any witness of the defendants present and the reason stated for non-filing of affidavits of evidence was not found to be reasonable; imposing a cost of Rs.2,000/- on the applicants / defendants no.1 and 3, time of three weeks was granted to the applicants / defendants no.1 and 3 to file affidavits by way of evidence and the suit posted on 24th March, 2011 for evidence of the applicants / defendants no.1 and 3; v) on 24th March, 2011, the Bar Association had called a strike and thus the suit was adjourned to 12th July, 2011; vi) on 12th July, 2011, though affidavit of three witnesses were filed on behalf of applicants / defendants no.1 and 3 but none of the witnesses were present and the suit adjourned to 21st August, 2011; vii) 21st August, 2011 was a holiday and the suit was taken up on 23rd August, 2011 when none appeared for the applicants / defendants no.1 and 3 and in the interest of justice, suit adjourned to 21st September, 2011 for evidence of the applicants / defendants no.1 and 3; viii) the suit was not listed on 21st September, 2011 and in December, 2011, the applicants / defendants no.1 and 3 filed application for defendant no.2 to lead evidence first and which was dismissed on 2nd May, 2012; ix) vide order dated 8th August, 2012, with a view to expedite recording of evidence, the same was ordered to be completed on commission and the parties directed to commence recording of evidence on 29th August, 2012 and the Commissioner requested to complete recording of evidence within six months therefrom; and, x) a perusal of the proceedings before the Commissioner show the applicants / defendants to have sought adjournment on 29th August, 2012, 6th March, 2013, 15th April, 2013, 24th May, 2013, 2nd July, 2013, 8th August, 2013, 5th September, 2013, 19th November, 2013, 11th November, 2014, 12th January, 2015, 11th December, 2015, 25th April, 2016, CS(OS) 82/1997 Page 4of 6 14th July, 2016, 8th December, 2016, 2nd February, 2017, 1st August, 2017, 25th August, 2017, 23rd May, 2018, 10th August, 2018, 29th January, 2019 and 12th March, 2019.

9. If the aforesaid is not sufficient to demonstrate the mockery which has been made by applicants / defendants no.1 and 3 of legal proceedings, I wonder what else will.

10. A perusal of the application also shows the applicants / defendants no.1 and 3 to be seeking to summon the witnesses aforesaid to bring the record of the banks with regard to pay orders issued by the said banks.

11. The applicants / defendants no.1 and 3 in their written statement-cum- Counter Claim are found to have pleaded in para no.7(g) thereof that the pay orders got prepared from the banks records whereof are now sought to be summoned and having paid the same to the plaintiffs no.1 and 2 and the husband of the plaintiff no.3. The plaintiffs in their replication-cum-written statement to the Counter Claim in the corresponding paragraphs have stated that the said payments were received but not from the defendant no.1 but from the defendant no.2 during preliminary negotiations regarding a collaboration agreement for redevelopment of the property and that the plaintiffs are ready and willing to refund the said payments. In this state of pleadings also, it is not deemed necessary to allow the summoning of the said witnesses.

12. The application is thus found to be meritless. There is no unending right in any litigant to continue leading evidence till eternity and / or till the opposing party is frustrated. The suit is for recovery of possession of prime immovable property and has already been pending for the last 22 years and the applicants / defendants no.1 and 3 are not found to deserve any further opportunity to lead evidence, especially after having confined themselves as aforesaid on 8th February, 2019.

13. It is well settled that the Court may refuse an application for issuance of summons of witness when such prayer has not been made bona fide, is vexatious or is an abuse of the process of the Court. This power is inherent in the jurisdiction of every Court of justice to protect itself from the abuse of its own procedure. Reference in this regard may be made to Kumar Basant Narain Singh Vs. State of Bihar AIR 1958 Pat 458, Sundramudi China Lakshmayya Vs. K. Suryanarayana AIR 1958 AP 254, Huddappa Vs. Gurikalla Thimmaiah 1970 SCC OnLine Kar 134, Gopala Krishna Murthy Vs. B. Ramachender Rao AIR 1973 AP 309, Munshi Ram Vs. Jang Bir Bhai 1986 SCC OnLine P&H 24 & State Bank of Patiala Vs. Dharam Pal 1992 SCC OnLine P&H 410. The aforesaid conduct of the defendants no.1 and 3 of having made a false statement in the Court and of having taken numerous adjournments over the years to delay the proceedings, also clearly amounts to abuse of the process of the Court.

14. The application is dismissed. CS(OS) No.82/1997

15. The suit and the counterclaim are ripe for final hearing.