Delhi District Court
Gunjan Kumar vs Vipin Parwanda & Anr on 31 August, 2018
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN,
ADDITIONAL DISTRICT JUDGE04, SOUTHEAST, SAKET
COURTS, NEW DELHI
Presiding Officer: Ms. Neelofer Abida Perveen, ADJ04
Suit No. 9865/2016
In the matter of :
Gunjan Kumar .......Plaintiff
VS.
Vipin Parwanda & Anr. ........Defendants
ORDER
Vide this order, I shall decide the application under Order 18 Rule 17 r/w Section 151 CPC filed on behalf of the defendant no. 1 for recall of PW1 for crossexamination filed on 23.12.2017.
1. The right of the defendant no. 1 to cross examine PW1 was closed by order on 21.12.2017. The application under consideration is filed on 23.12.2017 by defendant no. 1 under Order 18 Rule 17 to recall PW1 for crossexamination on behalf of defendant no. 1. It is contended on behalf of the applicant / defendant no. 1 that the case was listed on 21.12.2017 for crossexamination of PW1 by the counsel for the defendant no. 1 and 2 and as the counsel for the defendant no. 1 did not appear, this Hon'ble Court was pleased to forfeit the right of the defendant no. 1 to further cross examine PW1 and the matter was fixed for crossexamination of PW1 by defendant no. 2 for 26022018. It is further contended that for past few years the defendant no. 1 has fallen on bad days financially and is having meager source of income for the last about two years due to which he CS No. 9865/16 Gunjan Kumar Vs. Vipin Pawanda & Anr. Page 1 of 10 could not continue to retain his counsel and was constrained to seek legal aid which was provided to him. However, as luck would have it, the legal aid counsel who was to conduct the crossexamination of PW1 reported unwell in the morning of 21122017 and could not appear to conduct the crossexamination and due to such non appearance of the counsel for the defendant no. 1 this Hon'ble Court was pleased to close the right of defendant no. 1 to cross examine the PW1. That immediately on the passing of the order, as the cross examination of PW1 is of great significance on 21122017 the defendant no. 1 himself undertook to engage other counsel immediately and requested this Hon'ble Court to permit him to conduct the cross examination of PW1 on the next day i.e. 2212 2017 so that there is no delay in the case, as the plaintiff was attributing deliberate delay on the part of defendant no. 1. However, the request was declined. That the default on 21122017 was more due to circumstances beyond the control of the defendant no. 1 and not by choice or planned and due to his poor financial position. That the crossexamination of the PW1 is of utmost importance to bring about the correct facts / truth before this Hon'ble Court and it will be in the interest of justice to grant one last opportunity to the defendant no. 1 to conduct and conclude the crossexamination of PW1. That the defendant no. 1 has requested his earlier counsel to accept the case and seeing the poor financial condition of the defendant no. 1 and also the gravity of the situation, the counsel has agreed to take the case. That no prejudice shall be caused to the plaintiff in case the defendant no. 1 is permitted to cross examine the PW1 as the witness shall CS No. 9865/16 Gunjan Kumar Vs. Vipin Pawanda & Anr. Page 2 of 10 otherwise be appearing for her crossexamination by defendant no. 2. That the counsel for defendant no. 1 undertakes to cross examine the PW1 on one date as already fixed by this Hon'ble Court and shall seek no adjournment at any costs / reason. That irreparable loss and injury will be caused to the defendant no. 1 in case he is not permitted to cross examine PW1 and shall result in miscarriage of justice as the case is based on false and concocted story.
2. It is contended on behalf of the plaintiff / non applicant that recall of the witness for purposes of crossexamination is not envisaged under Order 18 Rule 17 CPC and it is only where some clarification or explanation is required by the Court in respect of the testimony of a witness that such a witness may be recalled for re examination by the Court soumoto or on application of a party. However, the provision cannot be misused by the defendant for filling up lacuna in his defence. It is further contended that the right has been closed after according several opportunities to the defendant and the application is merely dilatory tactic to further delay the adjudication of the proceedings.
3. I have heard the learned counsels and perused the record with their able assistance.
4. Learned counsel for the defendant no. 1 made an impassioned appeal that no fault lies with the defendant no. 1 but it is the advocates appointed and assigned who are at fault and failed to CS No. 9865/16 Gunjan Kumar Vs. Vipin Pawanda & Anr. Page 3 of 10 take the steps on the dates fixed in accordance with law and that the reasons for the nonappearance, nonavailability of the advocates appointed and assigned were not within the control of the defendant no. 1 and the defendant no. 1 was totally dependent upon his counsel for the purposes of crossexamination and that the defendant no. 1 should not be penalized for the fault of the advocates appointed and assigned as defendant no. 1 himself has been diligent in pursuing the present matter and it is undertaken on behalf of the defendant no. 1 that as PW1 is to undergo the crossexamination on behalf of defendant no. 2 on 04.09.2018, the crossexamination on behalf of defendant no. 1 shall be concluded within half an hour on the same day and that no further opportunity shall be sought for cross examination of PW1 on behalf of defendant no. 1 for any other date. The learned counsel assuming all blame for the failure of the defendant no. 1 has also volunteered to file his affidavit to this effect. Rule 17 of Order 18 provides that the Court may at any stage of a suit recall any witness who has been examined and may put such questions to him as the Court thinks fit.
5. PW1 was cross examined in part on behalf of defendant no. 1 on 26.09.2016. Thereafter, parties sought time for exploring the possibility of an amicable resolution of the dispute. Defendant no. 1 appeared in person on 13.01.2017 and sought time on the ground that the learned counsel representing him is unwell. On 28.03.2017 again adjournment was sought on behalf of the defendant on the ground of non availability of the learned counsel representing him. Adjournment CS No. 9865/16 Gunjan Kumar Vs. Vipin Pawanda & Anr. Page 4 of 10 was granted subject to cost of Rs. 4,000/ each to be paid to each of the witnesses. An application for adjournment was filed on 11.09.2017 by the defendant no. 1 appearing in person for adjournment on the ground that the previous advocate representing him has refused to represent the defendant and the defendant has approached DLSA Saket for appointment of Legal Aid Counsel. Last opportunity was granted to the defendant on. 1 Subject to further cost of Rs. 1000. No legal aid counsel had been appointed till the NDOH i.e. 03.10.2017. Right of the defendant no. 1 to cross examine PW1 as closed by order on 21.12.2017. On 21.12.2017 the defendant no. 1 was present in person and sought an adjournment on the ground that DLSA advocate informed the defendant in the morning that he is running fever and is therefore not appearing today for the cross examination of the witness.
Order 17 Rule 1 provides that the Court may if sufficient cause is shown at any stage of time can grant time to the parties or to any of them and may from time to time adjourn the hearing of the case for reasons to be recorded in writing and no adjournment is to be granted to a party more than 3 times during hearing of the suit and no adjournment is to be granted except where circumstances are beyond the control of the party and the mere fact that the pleader of the party is engaged in other Court is no ground for adjournment, however where a party appearing in person pleads the illness of a pleader as a ground for adjournment, adjournment shall not be granted by the court unless the Court is satisfied that the party applying for adjournment could not have engaged another pleader in time.
CS No. 9865/16 Gunjan Kumar Vs. Vipin Pawanda & Anr. Page 5 of 10From the proceedings that I have recorded above it emerges that the defendant no. 1 has been diligently pursuing the present proceedings and was present in person on each and every date of the hearing. On the date that the right of the defendant no. 1 to cross examine PW1 is closed by order the defendant no. 1 was in attendance in person and in the proceedings of the previous date of hearings it has been recorded that the advocate representing the defendant no; 1 had left the brief and the defendant no. 1 undergoing financial hardship had approached DLSA Saket for Legal Aid, Right to Legal Aid being the fundamental right of a litigant. On the date fixed for hearing, the legal aid counsel reported sick in the morning. In such facts and circumstances, the defendant no. 1 had no opportunity to engage the services of any other advocate for cross examination of PW1 on 21.12.2017. The order vide which right of defendant no. 1 to cross examine PW1 has been closed does not record the satisfaction of the Court on the aspect as to whether the defendant no. 1 in the facts and circumstances could have availed of / engaged the services of any other advocate or made alternative arrangements for the date of hearing.
6. I have to accept the contention of the learned counsel for defendant no. 1 that it is infact the advocates appointed and assigned to represent defendant no. 1 who failed to take the steps necessary for the dates of the hearing and defendant no. 1 has been diligently pursuing the present proceedings and appearing on each date of hearing. The defendant no. 1 who is handicapped in the manner that CS No. 9865/16 Gunjan Kumar Vs. Vipin Pawanda & Anr. Page 6 of 10 he could not have conducted the proceedings for the date fixed for hearing by proceeding with the crossexamination of PW1 and dependend entirely upon the services of the advocate assigned by the DLSA Saket to represent him and as the advocate assigned by the DLSA Saket to represent him had reported sick in the morning itself, defendant no. 1 did not have opportunity enough to make any alternate arrangements. Right to crossexamine a witness in an adversarial system is a valuable right of the party as the truth of the matter is highlighted and brought to the fore only through the process of crossexamination.
I shall advert briefly to the factual matrix in order to assess the cause of action set up against the defendant no. 1 to gauge if any prejudice is likely to be caused to the defendant no. 1 in the facts and circumstances if the defendant no. 1 is not permitted to crossexamine PW1 as the codefendant is crossexamining the witness. The suit of the plaintiff is for injunction and possession. The plaintiff seeks the said reliefs as purchaser of the suit property from the defendants sellers, defendants being husband and wife and equal coowners of the suit property. The sale deed in favour of the plaintiff is executed by the defendant no. 1 for himself and as Power of Attorney Holder of defendant no. 2, his wife. It is the case of the plaintiff that an agreement to sell dated 01.11.2001 was executed by one Sh. Ashwani Kumar and the defendant no. 1 and the defendant no. 1 had agreed to sell the entire ground floor of property described as Plot No. 139, BlockA, Kalkaji Extension, New Delhi and on the date of signing of agreement an amount of Rs. 12,60,000/ was paid in CS No. 9865/16 Gunjan Kumar Vs. Vipin Pawanda & Anr. Page 7 of 10 cash as part payment advance against the total sale consideration of Rs. 22 Lacs and in terms of the agreement to sell the sale deed could be registered in the name of the proposed vendee or his nominee and it was agreed that sale deed shall be executed in favour of the wife of Sh. Ashwani Kumar, the proposed vendee who is the plaintiff in the present suit and consequently sale deed dated 15.01.2010 came to be executed by the defendants in favour of the plaintiff upon payment of the balance sale consideration and that though it is recorded in the sale deed that actual, physical, vacant possession of the suit property has been handed over by the vendor to the vendee who is in possession of the same, however, the defendants represented that because of personal reasons the immediate handing over of possession may not be insisted upon and may be deferred till the examination of the daughter of the defendants are concluded. However, the defendants even thereafter had failed to handover the possession to the plaintiff and it has come to the knowledge of the plaintiff that the defendant have entered into other agreements in respect of the suit property in favour of third persons and one such person has also got registered an FIR against the present defendants.
7. The defendant no. 1 in the written statement contends that the defendant no. 1 was in need of money and had approached the husband of the plaintiff for arranging funds and it was projected by the husband of the plaintiff that the loan can be secured against mortgage of property and that the sale deed may be executed in favour of his wife only for the purposes of loan and the defendant had CS No. 9865/16 Gunjan Kumar Vs. Vipin Pawanda & Anr. Page 8 of 10 signed on some blank papers in good faith and visited the office of the Registrar as per the directions of the money lender, and that the amount of Rs. 10 Lakhs was received through cheque as loan and the sale deed is executed only to secure the repayment of the loan as the defendant was not empowered to execute sale deed and to transfer the suit property absolutely in favour of the plaintiff or any other person as the defendant no. 1 was owner to the extent of 20% only, in terms of memorandum of settlement dated 21.10.2009 arrived at by way of a settlement on 23.10.2009 in the course of the proceedings pending before Hon'ble the High Court of Delhi in a suit filed by the son and daughter of the defendants.
The defendant no. 2 has filed a separate written statement and raised similar contentions as raised by defendant no. 1. Though written statements filed by defendants 1 and 2 raise similar grounds, however, the sale deed in question is stated to have been executed by the defendant no. 1 for himself and as Power of Attorney Holder of defendant no. 2 and it is defendant no. 1 who alleges to have entered into a loan transaction with the husband of the plaintiff and to have signed on blank papers on the representations and at the behest of the husband of the plaintiff. Though the codefendant is also cross examining the PW1, however from the factual matrix traversed it emerges that grave prejudice shall be cause to the case of the defendant in case the leave as prayed for under the present application is not granted in favour of defendant no. 1. There is no question of any delay and prejudice to the plaintiff as the PW1 is still under crossexamination on behalf of defendant no. 2 and has not been CS No. 9865/16 Gunjan Kumar Vs. Vipin Pawanda & Anr. Page 9 of 10 discharged as yet.
8. Taking into account all such facts and circumstances as discussed above and invoking the inherent powers u/s 151 CPC, I recall order dated 21.12.2017 to the extent that right of defendant no. 1 to cross examine PW1 has been closed by order. One opportunity subject to cost of Rs. 2,000/ to be paid to the plaintiff is being granted to the defendant no. 1 to conclude the crossexamination of PW1 on behalf of defendant no. 1. 04.09.2018 is the date fixed for crossexamination of PW1 by defendant no. 2. It is directed that defendant no. 1shall cross examine PW1 on 04.09.2018 itself and no further opportunity shall be granted to defendant no. 1 to cross examine PW1 and PW1 shall not be summoned for purposes of crossexamination by defendant no. 1. In case defendant no. 1 fails to cross examine PW1 on 04.09.2018 no further opportunity shall be granted to defendant no. 1 to cross examine PW1.
9. Nothing stated herein above, however, shall be deemed to be an expression of opinion on the merits of the claims of the parties. The observations contained herein shall have no bearing on the merits of the claim or the final outcome.
Pronounced in the open Court (Neelofer Abida Perveen) on this 31st, August 2018. Addl. District Judge04, SouthEast, Saket Court, New Delhi.
The order contains 10 pages all checked and signed by me.
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