Delhi District Court
Sh. Rakesh Sehgal vs Smt. Meenakshi Gupta on 21 September, 2010
1
IN THE COURT OF SHRI S. K. SARVARIA, DISTRICT JUDGEVIII &
ADDITIONAL RENT CONTROL TRIBUNAL, DISTRICT COURTS
ROHINI, DELHI
RCA No. 25/10
1. Sh. Rakesh Sehgal
2. Sh. Naresh Sehgal
3. Sh. Navdeep Sehgal
4. Sh. Jaideep Sehgal
5. Sh. Madhurdeep Sehgal
All sons of Late Sh. K.L. Sehgal
6. Manisha
D/o Late Sh. K.L. Sehgal
All R/o Flat No. 9, Apna Ghar Cooperative
Group Housing Society, Rani Bagh, Delhi.
..... Appellants
VERSUS
Smt. Meenakshi Gupta
W/o Sh. Adesh Gupta
R/o A.653, Shastri Nagar,
Delhi - 110052.
..... Respondent
Date of Institution: 24.05.2010
Date of Arguments: 06.09.2010
Date of Pronouncement: 21.09.2010
Rakesh Sehgal Vs. Meenakshi Sehgal
2
JUDGMENT
The present appeal under Sections 38 of the Delhi Rent Control Act, 1958 is filed against the common order dated 20/4/2010 passed by Ld. Addl. Rent Controller (in short Ld. ARC), whereby application under S.151 CPC was dismissed with costs and application Order 18 Rule 17 CPC was dismissed without costs. Aggrieved with the same, the present appeal is preferred by the appellant.
The contention of counsel for the appellants was that the nonproduction of the evidence/statement of Sh. Naresh Kumar Sehgal and that of Lt. Sh. Kishore Lal Sehgal, which was recorded in earlier court proceedings, were material and necessary for the proper adjudication of the case. It was urged that the Ld. ARC failed to consider that closing of evidence and adducing additional evidence are two different aspects and thus, appellants should have been allowed to adduce additional evidence in the facts and circumstances of the case. Rakesh Sehgal Vs. Meenakshi Sehgal 3 It was submitted that the judgment dated 16/12/1995 in a case before subjudge and the judgment dated 27/1/1996 by the Civil Judge were relevant and the appellants were within their right to file the said judgments. It was averred that the witnesses had come to depose before the Ld. ARC on 14/8/2007 but could not bring the relevant record then and thus, that was no ground to close the evidence. It was urged that since a similar matter was pending before the Hon'ble Delhi High Court, thus, the Ld. ARC should have stayed the matter and allowed the application under S. 151 CPC. It was also submitted that no prejudice would be caused to the nonapplicant if the application is allowed while on the other hand, the applicants would suffer irreparable loss, which cannot be compensated in money if the present application is not allowed.
On the other hand, the Ld. counsel for the respondent submitted that there is no infirmity in the order passed by the Ld. ARC. Rakesh Sehgal Vs. Meenakshi Sehgal 4 It was submitted that there is no merit in the present appeal and same should be dismissed forthwith. It was pointed out that the judgment dated 27/1/1996 passed by the Civil Judge, which the appellants seek to place on record was reversed in appeal vide judgment dated 6/8/2001 by the ADJ. It was averred that the application under S. 151 CPC was rejected 3 times before as well vide orders dated 28/2/1995; 30/10/2006 and 19/11/2007 and now for the fourth time the same was dismissed vide order dated 20/4/2010 but no appeal was preferred against the said orders dated 28/2/1995; 30/10/2006 and 19/11/2007. He contended that the application under Order 18 Rule 17 CPC r/w S. 151 CPC was rightly dismissed in the facts and circumstances of the case as O. 18, R. 17 does not provide for production of documents, it simply gives discretion to the court to recall a witness for asking certain questions to the satisfaction of the court, however, the power cannot be exercised to allow parties to examine/crossexamine any witness by Rakesh Sehgal Vs. Meenakshi Sehgal 5 recalling them. He urged that the appellants have failed to show as to why they could not produce the said documents/certified copies of the judgments and the evidence of the deceased Lt. Sh. Kishore Lal Sehgal, which was recorded in earlier court proceedings at the time of the examination of the witnesses. It was pointed out that once before as well the application for reopening of the evidence of the appellants was dismissed by the Ld. ARC vide order dated 28/1/2008 and the said order has become final and operates as resjudicata. It was contended that the name of Sh. Naresh Kumar Sehgal was in the list of witnesses but still he was not examined. The learned counsel relied on decisions in Prithpal Singh vs. Satpal Singh2010(1) RCR 53 (SC); Central Bank of India vs. M/s. Rama GranitesAIR 2006 Mad 227; Krishan Lal vs. State of J & K(1994) 4 SCC 422;Ramesh Chand Sharma vs. R.S. Aggarwal & Ors.22 (1982) DLT 356; and Om Prakash Gupta vs. Rattan Singh & Nr. - 1 (1964) SCR 259.
Rakesh Sehgal Vs. Meenakshi Sehgal 6 I have heard Ld. Counsel for the parties and perused the record.
Appeal visàvis dismissal of application under Order 18 Rule 17 CPC:
In Sh. Jasbir Singh and Anr. Vs. Sh. Taranjit Singh in CM(M) 67576/2006 decided on August 27, 2008, our Hon'ble Delhi High Court held as under:
"5. I consider both the pleas taken by the petitioner are untenable. Order 18 Rule 17 CPC only gives power to the Court to recall a witness who has already been examined and cross examined so that some clarificatory questions can be put to him. Order 18 Rule 17 CPC does not warrant recalling of a witness because the counsel on earlier occasion refused to cross examine the witness. An application under Order 18 Rule 17 CPC filed for the purpose of recalling a witness earlier refused by the counsel to examine, is a gross misuse of the provisions of law. Once a witness is tendered for cross examination, the defendant's counsel Rakesh Sehgal Vs. Meenakshi Sehgal 7 is bound to cross examine and if he does not cross examine, the Court has to close the cross examination. A witness cannot be made to dance to the tune of the defendant's counsel nor the counsel has liberty to cross examine the witness as and when he likes. Once the defendant's counsel refuses to cross examine the witness he cannot be recalled under this provision. The power to recall a witness is given to the Court and not to a party and the Rule cannot be used for giving an opportunity to an erring party to have a witness recalled. Though, the Court can act under this Rule, either suo moto or at instance of the party, this power is intended to be sparingly used for the purpose of clarifying ambiguities and not for calling witnesses to fill up lacunae in the case of a party who refused to cross examine the witness. Order 18 C. P. C. is styled as "Hearing of the Suit and Examination of Witnesses". Order 18, Rule 17 in terms says that the Court may at any stage of a suit recall any witness who has been examined and may, subject to the law of evidence for the time being in force, put such questions to him as the Court thinks fit. From the aforesaid clearly, under Order 18 Rule 17 CPC only gives power to the Rakesh Sehgal Vs. Meenakshi Sehgal 8 Court to recall a witness who has already been examined and cross examined so that some clarificatory questions can be put to him.
In the instant case, the appellants seek permission to place certain documents on record and also lead additional evidence under Order 18 Rule 17 CPC but what they actually want is that the Court shall call upon the witness Sh. Naresh Kumar Sehgal, whose name was in the list of witnesses but still he was not examined. The provisions of Order 18 Rule 17 of the Civil Procedure Code, 1908, has been interpreted to include applications to be filed by the parties for the recalling of the witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts, which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness of a party, who has already been examined. Rakesh Sehgal Vs. Meenakshi Sehgal 9 In this regard, it would be relevant to consider decisions in VADIRAJ NAGGAPPA VERNEKAR (D) THROUGH LRS. & OTHERS Vs. SHARAD CHAND PRABHAKAR GOGATE, (20095L.W.52 (SC)), wherein it has been held that though the provisions of Order 18 Rule 17 of the Civil Procedure Code, 1908, has been interpreted to include applications to be filed by the parties for the recalling of the witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts, which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness, who has already been examined. In SUNDER THEATERS Vs. ALLAHABAD BANK, JHANSI, (AIR 1999 ALL.14), it had been stated that the power of the Court, under Order 18 Rule 17 C.P.C., is discretionary and has to be exercised with the greatest care only in exceptional circumstances. Under the garb of this rule, the Court ought not to recall Rakesh Sehgal Vs. Meenakshi Sehgal 10 a witness at the instance of a party in order to fill up the lacuna in the evidence already led.
Appeal visàvis dismissal of application under S.151 CPC:
In the present case on perusal of the record it is apparent that application for stay of proceedings before the Ld. ARC under S. 151 CPC was rejected 3 times before as well vide orders dated 28/2/1995; 30/10/2006 and 19/11/2007 and now for the fourth time the same was dismissed vide order dated 20/4/2010 but no appeal was preferred against the said orders dated 28/2/1995; 30/10/2006 and 19/11/2007.
It is well settled that there is no restriction on the rent controller to stay the proceedings before it merely because similar proceedings before the parties are going on in a civil court. In this regard in Ramesh Chand Sharma vs. R.S. Aggarwal & Ors.22 Rakesh Sehgal Vs. Meenakshi Sehgal 11 (1982) DLT 356, relied upon by learned counsel for the respondent/ defendant, it was held as under:
(3) Learned counsel for the appellanttenant submits that a dispute as to who was the owner of the suit property between the respondent and Smt. Ganga Devi widow of J. N. Gupta ostensible owner has been pending in the civil court and therefore the Controller and the Tribunal ought not to have passed the order of eviction but should have awaited the decision of the Civil court. Ex. A. W. 11 is the Release Deed dated 12th May, 1969 executed by Jagdish Narain Gupta (J. N. Gupta) son of Shri Ram Pershad in favor of Smt. Santosh Kumari wife of the respondent. This document states that the plot of land of the suit property at 110A, Krishan Nagar, Safdarjang Enclave, New Delhi was purchased by the respondent's wife in his name as a benamidar from the previous owner by means of a registered sale deed dated 21st September, 1961, that after purchase the respondent's wife put up construction on the said plot, that the property had been in possession of different tenants including the appellant, that he was managing the suit property as a benamidar for and on behalf of the respondent's wife, J. N. Gupta relinquished all his rights, interest and titled in favor of Smt. Santosh Kumari further delcaring that he has no right, title or interest in the suit property whatsoever any longer. J. N. Gupta died on 31st May 1970, leaving behind his widow, Rakesh Sehgal Vs. Meenakshi Sehgal 12 Ganga Devi. It appears that Ganga Devi filed a civil suit against Santosh Kumari, respondent's wife and othtr occupants of the suit property for a declaration that she was the owner of the suit property. This suit, it is admitted, is still pending before the civil court. The respondent's wife died on 9th September. 1975 and the respondent is now contesting that civil suit. The respondent filed that present eviction application, as already stated, in 1979 claiming eviction under Section 14(1)(e) of the Act. It is true that dispute about the title of the suit property is pending in the civil court but the Controller also has jurisdiction to determine whether the respondent was entitled to an order of eviction under Section 14(1)(e) of the Act. There is no bar for the Controller to decide an eviction application merely on the ground that a title suit relating to the suit property was also pending before the civil court. For the grant of an order of eviction under Section 14(1)
(e) of the Act it is necessary for the Controller to determine if the respondent was ownerlandlord. No provision of law has been brought to my notice that the Controller has no jurisdiction to try and decide the eviction application under Section 14(1)(e) of the Act during the pendency of the said suit in civil court. It is not denied that the civil court under Section 14 of the Act has no jurisdiction to pass an order of eviction against a tenant. The provisions of Section 10 of the Code of Civil Procedure are not applicable and therefore the eviction proceedings Rakesh Sehgal Vs. Meenakshi Sehgal 13 cannot be stayed on account of the pendency of the title suit in the civil court. It is therefore held that in spite of pendency of the title suit in the civil court the Controller has jurisdiction to try and decide the eviction application under Section 14 of the Act.
In view of the foregoing discussion, I do not find any merits in the present appeal. There is no need to go into other authorities relied upon on behalf of respondent and the same is hereby dismissed.
In view of the above discussion, the appeal is dismissed. The judgment be sent to the server (www delhidistrictcourts.nic.in). The parties shall appear before learned trial court on 27.09.2010 at 10.00 a.m. The trial court record be returned along with the copy of this judgment. The file of the appeal be consigned to the record room.
Announced in the open court
st
on 21 day of September, 2010 (S.K. SARVARIA)
DISTRICT JUDGEVIII &
ADDL. RENT CONTROL TRIBUNAL
ROHINI COURTS/ DELHI
Rakesh Sehgal Vs. Meenakshi Sehgal