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Delhi District Court

The vs Brij Mohan & Ors." 1983 Air 925 on 31 July, 2018

       IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
               DISTRICT JUDGE-02, WEST, DELHI.

CS No. 14/17/10
New No. 10633/16

M/s. Tirupati Cement & Ors.
vs.
D.D.A.

                                      AND

CS No. 16/17/10
New No. 612259/16

D.D.A.
vs.
M/s. Tirupati Cement & Ors.


                                             ORDER

31.07.2018

1. The applicant/defendant/DDA filed two exactly same applications under Order XVI Rule 1 (3) read with Section 151 CPC in the above mentioned two connected cases. The brief facts necessary for the disposal of the applications are as under:

2. It is stated that the suit no. 612259 of 2016 filed by DDA for recovery of Rs.24,02,037/- imposed by the S.E./CC-12 as compensation under Clause 2 of the agreement executed between DDA and M/s. Tirupati Cements. In the suit No. 610633 of 2016, the plaintiff M/s. Tirupati Cements is seeking a declaration to the effect that the compensation imposed by DDA has wrongly been imposed.

3. It is stated that as per Clause 2 of the aforesaid agreement, compensation can be levied by the Superintending Engineer of the concerned Civil Circle after issuing a show cause CS No. 14/17/10 (New No. 10633/16) & CS-16/17/10 (New No. 612259/16) Page 1 of 6 notice to the Contractor for delay in executing the work. In the work involved in the present suits, the then S.E./CC-12 Sh. A.K. Malik had issued a show cause notice bearing no. 37(12)EE(P)CC- 12/DDA/2009-10/62 dated 03.09.2009 to M/s. Tirupati Cements and after considering all the facts and circumstances, he had imposed a compensation of Rs.24,02,037/- upon M/s. Tirupati Cements.

4. It is stated that the DDA has already lead evidence of its Executive Engineer/ND-II Sh. Bimal Kumar Gupta, who is presently Incharge of the division where the work in question had been executed by M/s.Tirupati Cements. However, the show cause notice dated 03.09.2009 could not be exhibited and proved by him as the original thereof was not available with DDA on the file. The said show cause notice can be proved by Sh. A.K. Malik, the then S.E./CC-12, who had issued the same and had imposed the compensation. Since Sh. A.K. Malik retired from services of DDA on 30.06.2014, therefore, earlier the list of witnesses and affidavit of Sh. A.K. Malik could not be filed earlier. In the circumstances, Sh. A.K. Malik is very important and crucial witness to decide the real controversy involved in both the aforesaid suits. The evidence of Sh. A.K. Malik is the proper, relevant and necessary to prove and explain the facts and reasons for imposing the aforesaid compensation.

5. It is stated that on last date of hearing i.e. 05.07.2018, sh. A.K. Malik had appeared in person as a DDA witness and DDA sought to file his affidavit of evidence. However, the court has returned his affidavit of evidence observinv that DDA had not filed its list of witness. Ld. Counsel for the DDA has relied on case titled "Mange Ram vs. Brij Mohan & Ors." 1983 AIR 925.

6. It is stated that allowing the filing of the list of witnesses and production of Sh. A.K. Malok shall help the cause of justice and shall definitely assist this Court in deciding the suits on merits. Non filing of list of witnesses is only procedural formality which can be cured at any stage, therefore, no harm shall cause to M/s. Tirupati Cements if the present application is allowed and M/s. Tirupati Cements would get sufficient opportunity to cross- examine Sh. A.K. Malik on the above aspect. The DDA seeks that the enclosed list of witnesses and affidavit of evidence of Sh. A.K. Malik, SE, DDA (Retd.) may kindly be taken on record and DDA may kindly be allowed to produce Sh. A.K. Malik as witness.

7. M/s. Tirupati Cements filed replies to the applications and taken the preliminary objections that the application is an abuse of process of court since the same has been filed with the sole purpose of delaying the court proceedings. The applicant has deliberately withheld the best evidence available with them. The facts stated in the applications were well within the knowledge of the applicant and despite that, they failed to produce the said witness before the Court. Now when their case has been demolished in the cross-examination of their Executive Engineer Sh.Bimal Kumar Gupta, the said witness is being produced to cover up the lacuna left behind by him.

8. On merits, the averments made in the applications are denied. It is stated that the the contract itself was terminated by the applicant on 21.07.2009, therefore, issuance of show cause notice does not arise at all after 21.07.2009. Further, the said show cause notice was never served upon the defendant.

9. It is stated that th applicant themselves are to be blamed as they have produced Sh. Bimal Kumar Gupta as their primary witness and even the applicant has not filed their list of witness. The court has rightly returned the affidavit of Sh.A.K. Malik since the applicant has not filed their list of witness. It is stated that the facts of the case relied upon by the DDA are totally different from the present case. It is stated that the application be dismissed with cost.

10. I have heard Sh. Anupam Sharma, Counsel for the DDA and Sh. P.K. Mishra, proxy Counsel for Ms. Kamlakshi Singh, Counsel for the Tirupati Cements and perused the record. Ld. Counsel for the DDA relied upon Judgment in the case of Mange Ram Vs. Brij Mohan & Ors. - (1983) 4 SCC 36.

11. Ld. Counsel for the DDA Sh. Anupam Sharma vehemently argued on the basis of Mange Ram's case (supra) and referred to para 9, 10 and 11. The said Judgment in on the basis of factual matrix that appellant requested to examine his 54 witnesses who according to him were kept present is varied and the Court directed to examine on day to day basis. In this Judgment legal preposition held that as per Order XVI Rule 1 sub rule 1 list is required to be submitted for those witnesses whose presence is required through assistance of the Court. Omission from list is no ground to decline examination. However, in the present facts and circumstances of the case issues were framed on 17.03.2017 and both the parties DDA and Tirurpati Cement Products were granted time to file list of witnesses by 27.04.2017. Thereafter another opportunity was granted for filing list of witnesses till 25.05.2017. On 25.05.2017 Ld. Counsel for the parties submitted that they wish to file affidavit in each case of CS No. 14/17/10 (New No. 10633/16) & CS-16/17/10 (New No. 612259/16) Page 4 of 6 the witnesses but no list of witness filed by DDA and Tirupati Cement Products filed list of witnesses on 05.06.2017. Consequently, on 05.06.2017 DDA filed affidavit of Sh. Ram Charan and Tirupati Cement Products filed affidavit of Sh. Mukesh Aggarwal. As per submissions of both the parties, Tirupati Cement Products first examined their witnesses DW1 Sh. Mukesh Kumar Aggarwal; DW-2 Sh. Z.H. Feroz, DW-3 Ajay Kumar and DW- 4 Ms. Sudesh Bala Ahluwalia and closed evidence on 01.02.2018. DDA's turn to lead evidence commenced on 06.03.2018 when an application alongwith affidavit one witness Sh. Bimal Kumar Gupta filed. Sh. Bimal Kumar Gupta was examined, cross-examined and discharged on 25.05.2018. Thereafter, on 05.07.2018 another affidavit filed by DDA of Sh. A.K. Malik, Retired Superintendent. Consequently, the present application filed for seeking permission.

12. In my considered opinion in the present facts and circumstances of the case, the Judgment in the case of Mange Ram (supra) relied upon by Ld. Counsel for the DDA is distinguishable. The present cases are Civil Suits and not Election Petition. In the present case, the DDA examined present Executive Engineer Sh. Bimal Kumar Gupta, who has been thoroughly cross- examined by Tiruptai Cements Products. Now, after four months, DDA wish to call Retired Superintendent Sh. A.K. Malik, who was in-charge of the project. However, it is not explained as to what restrained DDA to produce Sh. A.K. Malik as witness. Secondly, I agree with the Counsel for the Tirupati Cements Products that now in order to fill up lacuna or deficiency in the testimony of Sh. Bimal Kumar Gupta, Retired Superintendent Sh. A.K. Malik is to be examined by the DDA. For the sake of arguments If it is allowed then in my considered opinion there would be prejudice to the CS No. 14/17/10 (New No. 10633/16) & CS-16/17/10 (New No. 612259/16) Page 5 of 6 rights of Tirupati Cement Products. The DDA must have made efforts to call Sh. A.K. Malik, Retired Superintendent, who according to DDA is now more relevant to the earlier witness. The provisions of law although handmade but cannot permit DDA to improve the deficiency of earlier witness and at the same time, it would cause prejudice to the rights of Tirupati Cement Products.

13. On the basis of above observation and discussion, the application filed by DDA under Order XVI Rule 1 (3) CPC is dismissed.

Announced in the open court today on 31st July, 2018.

(Sanjay Kumar) Addl. District Judge-02 (West), Tis Hazari Courts, Delhi CS No. 14/17/10 (New No. 10633/16) & CS-16/17/10 (New No. 612259/16) Page 6 of 6