Delhi High Court - Orders
Rajesh @ Raj Chaudhary And Ors vs Asha Chaudhary And Ors on 31 March, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~11, 12 & 13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 684/2004 & I.A. 16831/2019
RAJESH @ RAJ CHAUDHARY AND ORS. ..... Plaintiffs
Through: Mr. Sameer Vashisht and Ms. Sanjana
Nangia, Advocates.
versus
ASHA CHAUDHARY AND ORS. ..... Defendants
Through: Mr. Atul Singh, Mr. Rewant Chandra
and Mr. Swastik Singh, Advocates for
D-1 to 3.
Mr. Thakur Sumit, Advocate for D-5.
+ CS(OS) 1078/2004 & I.A. 16830/2019
RAJESH @ RAJ CHAUDHARY ..... Plaintiff
Through: Mr. Sameer Vashisht and Ms. Sanjana
Nangia, Advocates.
versus
ASHA CHAUDHARY ..... Defendant
Through: Mr. Atul Singh, Mr. Rewant Chandra
and Mr. Swastik Singh, Advocates for
D-1 to 3.
+ CS(OS) 414/2005, O.A. 148/2019 & I.As. 17535/2018, 16827/2019
ASHOK KUMAR ..... Plaintiff
Through: Mr. Lalit Gupta and Mr. Siddhanth
Arora, Advocates.
Signature Not Verified
Digitally Signed
By:SAPNA SETHI CS(OS) 684/2004, 1078/2004 & 414/2005 Page 1 of 7
Signing Date:09.04.2022
15:42:53
versus
ASHA CHOUDHARY AND ORS. ..... Defendants
Through: Mr. Sameer Vashisht and Ms. Sanjana
Nangia, Advocates for D- 4 to 7.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 31.03.2022 O.A. 148/2019 (u/ Chapter 2 Rule 5 of Delhi High Court (Original Side Rules), 2018 on behalf of Defendants No. 4 to 7 against Order dated 01st October, 2019) in CS(OS) 414/2005
1. The present appeal filed by Defendants No. 4 to 7 impugns the Order dated 01st October, 2019 passed by the Ld. Joint Registrar whereby the application filed by said Defendants under Order XVI Rule 2 of the Code of Civil Procedure, 1908 [hereinafter "CPC"] to summon witnesses as per list enclosed therewith was rejected. The Ld. Joint Registrar rejected the application holding that the list of witnesses was filed after inordinate delay, and the witnesses mentioned in the list are not relevant for adjudication of the issues in the present suit.
2. Mr. Sameer Vashisht, counsel for the Appellants (viz. Defendants No. 4 to 7) contends that the Ld. Joint Registrar erroneously dismissed the said application without appreciating the facts of the case. The Ld. Joint Registrar has committed judicial impropriety since the findings contained in the impugned Order is in direct derogation/ conflict with the directions of the Division Bench in the Order dated 02nd December, 2011 in FAO(OS) Signature Not Verified Digitally Signed By:SAPNA SETHI CS(OS) 684/2004, 1078/2004 & 414/2005 Page 2 of 7 Signing Date:09.04.2022 15:42:53 120/2011 and 122/2011. The Ld. Joint Registrar ought not to have acted as an Appellate Court to set-aside the observations made by the Division Bench. Further, he argues that the Ld. Joint Registrar failed to appreciate that all the parties were aware that no separate evidence was required to be led in CS(OS) 684/2004 and CS(OS) 1078/2004. Instead of taking an approach to minimise the proceedings; the Ld. Joint Registrar multiplied the same.
3. The Appellants ought to have filed their list of witnesses within the time allowable under CPC, that is, within a period of fifteen days from the date of framing of the issues. The observations of the Ld. Joint Registrar regrading inordinate delay on the part of the Appellants in filing the list of witnesses cannot be faulted with.
4. Appellant has laid much emphasis on the Order of the Division Bench wherein it was observed that although separate issues have been framed in the above-captioned suits, however, common evidence has been recorded. The relevant portion of the said Order reads as follows: -
"Learned counsel for the appellant states that he is not interested in being impleaded as party in the specific performance suits, which claim was rejected and has resulted in filing of the appeals, if all the suits can be tried together for which even earlier directions were passed by the learned Single Judge but the suits have thereafter got segregated. The aforesaid is acceptable to all the parties who state that while some of the suits are ready for trial in other suits the process of admission/ denial is still on.
It is thus expedient that all the suits be placed before the Hon'ble Judge Incharge Original Side for necessary directions so that all the suits can be expedited and tried together. This would of course necessitate framing of issues in the suits where the said exercise has not been undertaken and we are sure the learned Single Judge, who will deal with the matter, will ensure that all suits are ready for trial at the earliest.Signature Not Verified Digitally Signed By:SAPNA SETHI CS(OS) 684/2004, 1078/2004 & 414/2005 Page 3 of 7 Signing Date:09.04.2022 15:42:53
It is also agreed by learned counsel for parties that in view of the heavy board of the Jt. Registrar and there being multiplicity of proceedings a retired judicial official be appointed to record the evidence in all the suits separately. In view of the aforesaid, by agreement of learned counsels for parties, the following directions are issued:
(i) The suits, which are stated to be listed for admission/ denial of documents on different dates in December, learned counsel for the parties assure that they will complete the process of admission/ denial of documents.
(ii) All the aforesaid suits will be listed for directions/ framing of issues before the learned Single Judge, as per the directions of the Hon'ble Judge Incharge Original Side, on 17.01.2012 whereafter they shall be placed before the local commissioner for recording of evidence.
(iii) The first date for necessary directions before the Local Commissioner is fixed at 01.02.2012 at 4.00 p.m. We make it clear that it is the responsibility of the parties to make arrangements for recording of evidence in precincts of the Delhi High Court.
(iv) The local commissioner will record the evidence in all the suits, though separately in each case unless parties agree that common evidence can be recorded in some of the suits."
5. Mr. Vashisht explains that although the application adjudicated by the Ld. Joint Registrar was filed in CS(OS) 414/2005, the Appellants (viz. Defendants No. 4 to 7) in CS(OS) 414/2005 are also the Plaintiffs in CS(OS) 684/2004 and 1078/2004. He submits that all the suits are being tried together in terms of the Order of the Division Bench.
6. The list mentions 37 witnesses. However, on a query of the Court regarding the relevance of the witnesses, Mr. Vashisht, after perusing the said list, submits that Appellants will confine the request to witnesses at serial Nos. 1, 2, 9, 10 and 16 under PART C of the additional list of witnesses. These witnesses, he submits, are the official witnesses, relevant for the purpose of bringing the record and/ or proving the documents which have been placed on record. In so far as the list of witnesses contained in PART B is concerned, Mr. Vashist seeks to add only the witness in serial No. Signature Not Verified Digitally Signed By:SAPNA SETHI CS(OS) 684/2004, 1078/2004 & 414/2005 Page 4 of 7 Signing Date:09.04.2022 15:42:53 1 & 2. Witness at serial No. 1 is the Record keeper - who is named for proving the certified copies of the record pertaining to the suit viz. CS(OS) 684/2004 which has been placed in the instant suit. On this witness, Mr. Lalit Gupta, counsel for the Plaintiff states that without admitting any of the contents of the certified copies, the same can be adduced in evidence. Therefore, to that extent the summoning of the record keeper, becomes unnecessary. The certified copies in CS(OS) 684/2004 shall be admitted in evidence, subject to all just exceptions.
7. Mr. Gupta, however, objects to the other witness stating that he would be gravely prejudiced, if the Appellants are allowed to examine them at this stage. He further submits that Plaintiff has already completed his evidence and he should therefore, be afforded opportunity to lead further evidence, if Appellants' request is to be allowed.
8. In the opinion of the Court, the afore-noted objection is devoid of merit. Plaintiffs were aware of the issues wherein onus was casted on them. They were required to lead evidence thereon irrespective of the list of witnesses of the Defendants. Merely because a party is allowed to file list of witnesses belatedly, it does not mean that the opposite party has to be afforded another opportunity to lead evidence.
9. That said, there can be no dispute that filing of list of witnesses is not an empty formality and the parties should adhere to the timelines provided in CPC. However, sub-rule 3 of Rule 1 of Order XVI of CPC provides that the Court may permit a party to call a witness either by summoning or Signature Not Verified Digitally Signed By:SAPNA SETHI CS(OS) 684/2004, 1078/2004 & 414/2005 Page 5 of 7 Signing Date:09.04.2022 15:42:53 otherwise whose name does not appear in the list of witnesses, if party shows sufficient cause for omission to mention its name in the list. There is thus no total prohibition on the party to produce the witnesses. Nonetheless, when they seek assistance of the Court, they are enjoined to give reasons as to why they have not filed the application within the time prescribed under Rule 1 of Order XVI. The list of witnesses has now been substantially curtailed on the statement of Mr. Vashisht. These witnesses are those which are required to be summoned for proving the record and are formal witness for proving the record. Therefore, the Court is inclined to allow the request. However, since due diligence was not exercised by the Defendants No. 4 to 7 in filing the list of witnesses and delay has occurred because of the same, the Plaintiff has to be appropriately compensated with imposition of costs. In view of the afore-noted facts, the impugned Order of the Ld. Joint Registrar is set-aside only to the limited extent of allowing the Appellants to lead evidence of the witness at serial No. 2 mentioned in PART B and witnesses at serial Nos. 1, 2, 9, 10 and 16 in PART C. For the inordinate delay caused, Appellants (viz. Defendants No. 4 to 7) are burdened with cost of Rs. 75,000/- which shall be paid to the Plaintiff.
10. It is further clarified that the observations made by the Ld. Joint Registrar shall not have any bearing on the merits of the case.
11. With the above directions, the appeal is disposed of.
12. List before the Local Commissioner for scheduling the dates of trial 13th April, 2022.
Signature Not Verified Digitally Signed By:SAPNA SETHI CS(OS) 684/2004, 1078/2004 & 414/2005 Page 6 of 7 Signing Date:09.04.2022 15:42:53CS(OS) 684/2004
13. Defendant No. 5 viz. Sh. Raj Malhotra has been impleaded as a party and Mr. Thakur Sumit, counsel for Defendant No. 5 proposes framing of an additional issue qua Defendant No. 5. The same is unopposed by Mr. Vashisht.
14. Accordingly, the following additional issue is framed: -
"Whether the Defendant No. 5 is a bona-fide purchaser of the built-up portion having area 790 Sq. Ft. situated on the third floor (front side) of the property bearing MCD No. A-252 erected on freehold Plot No. 191 out of Khasra No(s). 185/150/2/1 & 185/150/2/2 situated at Sant Nagar, revenue estate of Village Garhi Jharia Maria, East of Kailash, New Delhi-110065? OPD-5"
15. List before the Local Commissioner for scheduling the dates of trial 13th April, 2022.
SANJEEV NARULA, J MARCH 31, 2022 d.negi (Corrected and released on: 09th April, 2022) Signature Not Verified Digitally Signed By:SAPNA SETHI CS(OS) 684/2004, 1078/2004 & 414/2005 Page 7 of 7 Signing Date:09.04.2022 15:42:53