Delhi District Court
Smt. Mohini Duggal vs Smt. Indu Bala & Anr on 10 April, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
C.S. No.239/2011
Unique I. D. No. 02401C0555732011
Smt. Mohini Duggal
......Plaintiff
Versus
Smt. Indu Bala & Anr.
.......Defendant
O R D E R
1. Vide this order I shall dispose of an application dated 02.12.2014 under Order XVIII Rule 17 read with Section 151 CPC of defendant no2, seeking recalling of order dated 20.11.2014 of my Ld. Predecessor and for permitting the defendant no2 for leading evidence.
2. I have heard Sh. Vineet Chaddah, Ld. counsel for applicant/defendant no2 and Sh. L.S. Solanki, Ld. counsel for plaintiff and have perused the record including the application and its reply under CS239/2011 Mohni Duggal Vs. Indu Bala & Anr. Page 1 of 8 consideration.
3. Application dated 02.12.2014 under consideration contains averments of 'suit listed today i.e. on 20.11.2014' for recording of defendant's evidence and passover obtained by proxy counsel of defendant no.2 at 10.30 A.M. but when at 12.00 noon the defendant no.2 appeared, she requested for passover of the matter wanting her deposition to be recorded in the presence of her counsel who had not arrived, her request was declined and defendant's evidence was closed and her request for passover was taken as a refusal on part of defendant no.2 to take oath. Also has been averred that defendant no.2 never intended to refuse to take oath but was unable to understand the direction. Defendant no.2 wants more opportunity to lead evidence accordingly after recalling of order dated 20.11.2014.
4. Plaintiff has controverted the averments of the application in the filed reply submitting despite opportunities defendant no.2 was adopting dilatory tactics and when was in attendance for cross examination on 20.11.2014, she refused to take oath despite directions of CS239/2011 Mohni Duggal Vs. Indu Bala & Anr. Page 2 of 8 this court and considering her conduct and dilatory tactics, the application deserves dismissal.
5. The instant suit has been filed by the plaintiff for a decree of possession of the "2nd floor of the property no. 14A/89, with terrace/roof rights situated in W.E.A, Karol Bagh, New Delhi" (hereinafter referred to as 'the suit property') on the averments of having purchased the same for a consideration of Rs. 1,05,000/ vide sale deed dated 25.09.06 from the defendant no. 1; the plaintiff had spent Rs. 8,05,000/ for renovation of the same. Thereafter the defendant no. 2 approached her for purchase of the same and agreement dated 29.08.08 for sale of the suit property to the defendant no. 2 was executed for a consideration of Rs. 18,00,000/ and Rs. 2,00,000/ were received as earnest money by the plaintiff from the defendant no. 2. Thereafter the defendant no. 2 requested the plaintiff stating that cleaning of the suit property was required for her moving in after final payment/sale deed and on this pretext obtained the keys of the suit property from the plaintiff. She also promised that she would proceed further for completing the sale and execution of sale deed. However, in spite of the exchange of notices nothing happened. The CS239/2011 Mohni Duggal Vs. Indu Bala & Anr. Page 3 of 8 plaintiff then came to know that defendants were related as motherinlaw and daughterinlaw and had played a fraud upon him. The keys of the suit property were handed over to defendant no. 2 only in good faith on 26.10.08. Hence the suit.
6. The defendant no. 1 appeared in pursuance to the summons. She had chosen not to file a written statement. The defendant no. 2 has filed her written statement on 30.07.2012.
7. The version of defendant no.2 in her written statement is that the story as propounded by the plaintiff is incredible. The defendant no. 2 is protected under the doctrine of part performance under section 53A of the Transfer of Property Act. She is in rightful possession, has paid the entire consideration and the plaintiff is seeking undue advantage of her own wrong on nonexecution of the sale deed. It is a case in which the plaintiff has wronged the defendant no. 2. The delay in filing the suit speaks volumes against the plaintiff. The conduct of plaintiff is malafide. She is not entitled for any injunction as claimed. CS239/2011 Mohni Duggal Vs. Indu Bala & Anr. Page 4 of 8
8. Issues were framed on 26.11.2012 by my Ld. Predecessor. Plaintiff's evidence was closed on 21.05.2014 by Ld. counsel for plaintiff before my Ld. Predecessor. Thereafter, matter was fixed for 16.07.2014 for evidence on behalf of defendant no.2, directing her to supply advance copy of affidavits at least 15 days prior to next date of hearing. On 16.07.2014, affidavit of defendant no.2 was filed but defendant no.2 did not attend the court. Advance copy of affidavit of defendant no.2 was not supplied to plaintiff/counsel as per order dated 21.05.2014. On 16.07.2014 itself, copy of affidavit of defendant no.2 was given to the proxy counsel for plaintiff and matter was adjourned for appearance of defendant no.2 and her crossexamination on 04.09.2014. On 04.09.2014, again defendant no.2 did not attend the court and my Ld. Predecessor granted another opportunity in the interest of justice subject to cost of Rs.2500/ and fixed matter for appearance and examination of defendant no.2 on 16.10.2014. On 16.10.2014, defendant no.2 was examined in chief as DW1 and counsel for defendant no.2 requested for adjournment as some original documents were not brought by defendant no.2 i.e. DW1. Last and final opportunity was granted to defendant no.2 subject to cost of Rs.5000/ and matter was adjourned by my Ld. Predecessor on CS239/2011 Mohni Duggal Vs. Indu Bala & Anr. Page 5 of 8 16.10.2014 for 20.11.2014 for examination/crossexamination of DW1.
9. Following is the detailed order of my Ld. Predecessor of date 20.11.2014 : "20.11.2014 Present: Sh. L.S. Solanki, ld. counsel for plaintiff.
Proxy counsel on behalf of defendant no.2.
Passover is sought by proxy counsel on behalf of defendant no. 2 as the main counsel and the witness is not present.
Counsel for plaintiff seeks permission to leave for the High Court to attend a matter after 11.30 a.m. and, accordingly, passover is given for 11.00 a.m. Sd (Anju Bajaj Chandna) ADJ1 (Central) Delhi 20.11.2014 At 12.00 PM Present: Counsel Sh. L.S. Solanki, for the plaintiff.
Witness DW1 Ms. Ruchi Malhotra is present.
Cost of Rs. 5,000/ paid. However, when the witness was called to take oath for further crossexamination, she refused to take oath despite directions of the court and repeatedly asked the court to wait for her counsel to come. It is already 12.00 P.M. Counsel for plaintiff is waiting since morning. The witness is clearly made to understand that she has to take oath and to give answers to the questions in cross examination but the witness keeps on insisting that she will not take oath nor will make statement without her counsel.
In these circumstances, I find no justification to keep the matter pending any further. There is no reason shown for the absence of counsel even. Previously also, delay has been caused due to the absence of the witness. CS239/2011 Mohni Duggal Vs. Indu Bala & Anr. Page 6 of 8 Accordingly, DE is closed with the observations that affidavit of DW1 Ruchi Malhotra would not be read in evidence. Witness is discharged.
Matter is now listed for final arguments for 16.01.2015.
Sd (Anju Bajaj Chandna) ADJ1 (Central) Delhi 20.11.2014"
10. Order dated 20.11.2014 is crystal clear regarding the conduct of witness DW1 i.e. defendant no.2. Defendant no.2 was fortunate that despite her refusal to take oath despite directions of my Ld. Predecessor on 20.11.2014, the procedure embodied in Section 345 of the Code of Criminal Procedure, 1973, in respect of commission of offence u/s 178 of Indian Penal Code for refusal of taking oath by DW1 when duly required by my Ld. Predecessor, had not been invoked. Finding it fit and expedient in the interest of justice, my Ld. Predecessor had closed the defendant's evidence on 20.11.2014, as there was no justification for keeping the matter pending after observing that there was no reason shown for the absence of the counsel and earlier also delay had been caused by defendant no.2 due to her absence, making it clear that affidavit of DW2 would not be read in evidence. No list of defendant's witness had been placed on record by the defendant. No steps were taken CS239/2011 Mohni Duggal Vs. Indu Bala & Anr. Page 7 of 8 to summon any witness in defendant evidence for 20.11.2014. Besides defendant no.2 (DW1) no other witness of defendant no.2 was in attendance in court on 20.11.2014. The dilatory tactics adopted by defendant no.2 are writ large on the face of record and elicited herein above. In this peculiar fact of the matter, I find no substance and merit in the averments and contentions of defendant no.2 as they are contained in the application under consideration, and as elicited above, to recall the order dated 20.11.2014.
11. Application under Order XVIII Rule 17 CPC lacking merits and also being tool of dilatory tactics, is accordingly dismissed with cost of Rs.10,000/.
12. Nothing herein above said shall be deemed to be an expression on the merits or demerits of the case.
Announced in open Court on 10th Day of April, 2015.
(GURVINDER PAL SINGH)
Addl. Distt. Judge(Central)01,
(AD) Tis Hazari Courts, Delhi.
CS239/2011
Mohni Duggal Vs. Indu Bala & Anr. Page 8 of 8