Sarabjit Ahooja v. Parul Rastogi

1. The civil suit (CS No.1227/2016) from which these proceedings arise was instituted by the respondent against three defendants that include the petitioner herein, in the year 2013 seeking reliefs of possession, injunction – permanent and mandatory, recovery of rent, mesne profits and damages. The issues were framed in the suit on 24.02.2014 whereafter it had entered trial. Two witnesses (PW-1 and PW-2) were examined on 09.01.2015 when their cross-examination 2018:DHC:1118 was deferred. Thereafter, the petitioner herein made defaults in appearance with counsel for completion of the exercise of crossexamination. The opportunity was closed by order dated 28.11.2015. The plaintiff continued with adducing evidence and the case entered the stage of defendant’s evidence when application was moved seeking recall of PW-1 and PW-2 under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (CPC). The said application was dismissed by the additional district judge by order dated 15.11.2017 which is under challenge through the petition at hand.

2. The plaintiff had submitted a caveat petition expecting a petition to be moved in this regard. The petitioner (defendant in the suit) came with the petition at hand on 09.01.2018 avoiding service of the notice of motion on the caveat petitioner. Therefore, ex parte stay was declined, though notice was issued returnable on 17th July, 2018. The petitioner has, thereafter, moved an application for directions, advance copy of which has been served on the respondent (the plaintiff) who has consequently appeared, the prayer being for urgent hearing since the suit is at the stage of final adjudication. In this view, the date for 17th July, 2018 is cancelled and the petition is taken up for hearing and disposal.

3. During the course of hearing, the counsel for the petitioner made submissions which were in the nature of an attempt to mislead. He argued that while PW-1 was examined and her cross-examination deferred, PW-2 had not even been tendered earlier and, therefore, order dated 28.11.2015 was bad in law. This submission was factually incorrect, as is borne out from the previous proceedings recorded on 09.01.2015 by the trial court. The application for recall of the witnesses has come after a great delay. The application which was moved seeking recall under Order XVIII Rule 17 CPC would note that the counsel for the defendant was not present. Since the counsel who is present is the same who represents him before the trial court he was asked to explain the reasons for his own absence. He was clueless. The petitioner, however, is present in person and stated that the counsel was out of town. It is vivid that reasons are being invented.

4. Be that as it may, it is desirable that the case is adjudicated upon after full and effectual opportunity is granted. Since the petitioner had participated in the subsequent proceedings wherein other witnesses of the plaintiff were examined and cross-examined, having regard to the nature of reliefs claimed, the opportunity for cross-examination of PW-1 and PW-2 ought to be revived though subject to suitable conditions.

5. Thus, the application to above effect is granted, subject to the petitioner paying costs in the sum of Rs.1,00,000/-, half of which shall be deposited with District Legal Services Authority and the balance paid to the plaintiff of the case. The payment and deposit of the costs shall be a condition precedent to the opportunity to be made available to the petitioner to cross-examine the said witnesses (PW-1 and PW-2) of the plaintiff.

6. The learned counsel on both sides submit that the case is listed before the trial court on 01.03.2018 for final arguments. The costs shall be paid to the plaintiff in above terms on the said date and the costs shall be deposited with District Legal Services Authority in advance before the next date of hearing. Upon the proof of deposit and payment, the trial Judge will fix an appropriate date calling upon the plaintiff to produce PW-1 and PW-2 when they shall be tendered to the petitioner/defendant for cross-examination. It shall be the responsibility of the petitioner/defendant to remain present with counsel, duly briefed and instructed, on the first call of the case. There will be no further indulgence shown. In case any default in compliance with the above mentioned conditions, the opportunity shall stand exhausted by virtue of this order.

7. The petition and the applications filed therewith stand disposed of in above terms.

8. Dasti. R.K.GAUBA, J FEBRUARY 13, 2018 vk