P.S.S Agoro & Investment Pvt Ltd v. Papita Devi & ORS

$~56 * IN THE HIGH COURT OF DELHI AT NEW DELHI + P.S.S AGRO & INVESTMENT PVT LTD ..... Petitioner Through:

Mr. B.B. Gupta, Sr. Adv. with Mr. A.

Gupta, Mr. Nakul Sachdeva & Mr.

Vishal Vijayuargiya, Advs.

Versus

PAPITA DEVI & ORS ..... Respondents Through:

None.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

O R D E R

% 18.09.2017 CM No.34155-56/2017 (both for exemptions) 1.

Allowed, subject to just exceptions.

2.

The applications are disposed of.

CM(M) 1038/2017 & CM No.34154/2017 (for stay) 3.

This petition under Article 227 of the Constitution of India impugns the order [dated 21st August, 2017 in Civil Suit No.12883/2016 of the Court of Additional District Judge (ADJ)-13, Central District, Tis Hazari Courts, Delhi] closing the evidence of the petitioner / defendant no.1 in the suit and posting the matter for final arguments on 11th September, 2017. 4.

Though the impugned order closes the evidence, besides of the petitioner / defendant no.1, also of the petitioner / defendant no.2 and for whom also the counsel for the petitioner / defendant no.1 had appeared on 21st August, 2017 but the senior counsel for the petitioner / defendant no.1 states that the defendant no.2 was a Director of the petitioner / defendant no.1 and is no longer a Director.

5.

The senior counsel for the petitioner / defendant no.1 has been heard. 6.

The suit from which this petition arises was filed by the respondents no.1 to 3 / plaintiffs for declaration of sale deed with respect to immovable property as null and void and for other ancilliary reliefs. 7.

The impugned order records and the senior counsel for the petitioner / defendant no.1 has not rebutted that the suit was filed more than ten years earlier i.e. in the year 2005.

8.

I may in this regard record that the National Court Management Systems Committee of the Supreme Court and the State Court Management Systems Committee of the different High Courts including of this Court have been endeavouring to have all suits pending for more than ten years disposed of on or before 31st December, 2017 and have been holding workshops in this regard and issuing administrative directions to not give repeated adjournments merely at the asking.

9.

A perusal of the order sheet, copies of some of which have been filed along with the paper book and others have been shown during the course of hearing, demonstrate i) that the suit was listed first for the evidence of the petitioner / defendant no.1 on 20th October, 2016; ii) on 20th October, 2016, the proxy counsel for the petitioner / defendant no.1 sought adjournment stating that the evidence affidavit was not ready; iii) the learned ADJ in the order dated 20th October, 2016 observed that it had been recorded in the earlier order dated 2nd August, 2016 that the suit had been lingering at the stage of defendant's evidence for a number of dates and despite that again adjournment was being sought but still granted last and final opportunity to the petitioner / defendant no.1 and to defendant no.2 to lead defendant's

evidence subject to payment of costs of Rs.10,000/- with Prime Minister's Relief Fund and adjourned the suit to 12th December, 2016 for evidence of the petitioner / defendant no.1; iv) 12th December, 2016 is informed to have been declared a holiday and cases listed on that date were ordered to be taken up on 14th December, 2016; v) on 14th December, 2016, the petitioner / defendant no.1 instead of leading his evidence, filed an application for waiver of costs imposed on 20th October, 2016 contending that it remained to be brought before the Court that the affidavit by way of examination-inchief on behalf of petitioner / defendant no.1, of defendant no.

2 had been filed earlier only; the matter was adjourned to 13th April, 2017 for consideration of the said application; vi) on 13th April, 2017, the application for waiver of costs was dismissed observing that since the witness of the petitioner / defendant no.1 was also not present and the fact remained that on 20th October, 2016 adjournment was sought and for which costs had been imposed, there was no ground to waive the costs; recording that no witness of the petitioner / defendant no.1 was present on 13th April, 2017 also, but since the matter on 14th December, 2016 had been adjourned to 13th April, 2017 for disposal of the application, one more opportunity was given to the petitioner / defendant no.1 to examine its witnesses; it was made clear that failing which, evidence on behalf of petitioners / defendants no.

1&2 shall stand closed; vii) on 21st August, 2017 also no witness of the petitioner / defendant no.1 and/or of defendant no.2 was present and the counsel for the petitioners / defendants no.1&2 sought one more opportunity to lead evidence stating that the witness who was to be examined had left the services of the petitioner / defendant no.

the next date of hearing and that the petitioner / defendant no.1 wanted to summon some more witnesses; and, viii) observing that since no witness was present or summoned and the matter being more than ten years old, the evidence of the petitioner / defendant no.1 was closed. 10.

Seen in the aforesaid perspective, in my view, 21st August, 2017 was the fourth opportunity given to the petitioner / defendant no.1 to lead its evidence and the petitioner / defendant no.1 having not led its evidence inspite of having been cautioned on the previous date i.e. 13th April, 2017 that if it did not lead its evidence, its evidence shall stand closed, the order closing the evidence is in order.

11.

It is the contention of the senior counsel for the petitioner / defendant no.1 that the respondents no.1 to 3 / plaintiffs took several adjournments for their own evidence.

12.

That is no argument in law. There is no equal treatment in the matter of adjournments. If the petitioner / defendant no.1 had any grievance about the adjournments being sought by the respondents no.1 to 3/ plaintiffs, the petitioner / defendant no.1 could have urged the same and / or argued to have the right of the respondents no.1 to 3/ plaintiffs to lead evidence closed. Merely because a litigant joins the other in taking repeated adjournments, does not entitle that litigant to seek equal number of adjournments for itself. 13.

The senior counsel for the petitioner / defendant no.1 next contends that the petitioner / defendant no.1 has nothing to gain or benefit from the

adjournments or for delaying the matter and in fact the respondents no.1 to 3/ plaintiffs are already in possession of the property. 14.

The question is not of the benefit which is being derived by the petitioner / defendant no.1 from delaying but of respecting the dates of hearing fixed in the Court. The same are to be respected and appropriate preparation made therefor and with which respect no argument whatsoever is sought to be given. On the contrary, fault is found with the order of the Court in imposing costs without realising that the affidavit by way of examination-in-chief was already on record. However what the order reads is that it was the proxy counsel for the petitioner / defendant no.1 himself who had stated that the evidence affidavit was not ready. Upon the same being put to senior counsel for the petitioner / defendant no.1, the only explanation is that it was a mistake.

The counsels cannot leave the burden of all hearing on the Court and find faults with the Court, rather than assisting the Court, misleading the Court by making erroneous statements. What is in fact found is that the counsel for the petitioner / defendant no.1 had not even bothered to appear and had sent a proxy counsel on 20th October, 2016.

15.

At this stage, the counsel for the petitioner / defendant no.1 states that in fact the Court erred in recording the presence of Sh. Vishal Vijay, Advocate as proxy counsel. It is stated that vakalatnama of Sh. Vishal Vijay, advocate was also on record.

16.

The Court on its own never records presence of the counsel as proxy unless the counsel appearing himself describes himself as proxy counsel. Otherwise also, what is found is that it is Mr. K.K. Gogne, Advocate who had been appearing on behalf of the petitioner / defendant no.1 and who was not present on 20th October, 2016. If a counsel inspite of vakalatnama being on record, for the sake of taking adjournment describes himself in the Court as proxy counsel and gives his appearance as proxy counsel, the litigant / counsel is himself to blame therefor.

17.

It is also the contention of the senior counsel for the petitioner / defendant no.1 that 14th December, 2016 was a date for proper order. 18.

At this stage, the senior counsel for the petitioner / defendant no.1 states that he does not want to press this argument. 19.

Merely because an application for waiver of costs had been filed, is no ground for petitioner / defendant no.1 to have stalled leading its evidence. 20.

Though the argument is raised of the defendant no.2 having left the employment but neither the date when the defendant no.2 has left the employment of petitioner / defendant no.1 is given nor informed inspite of asking.

21.

Inspite of the order dated 13th April, 2017 cautioning the petitioner / defendant no.1 that if it did not lead its evidence on 21st August, 2016, evidence would be closed, no seriousness was shown. 22.

I have in an order in another similar matter today in the morning observed that it is perhaps owing to the Courts not demanding perfection that perfection is found to be lacking and dates of hearing in the Court being

treated as only for the purpose of seeking adjournments. Only if the Courts start demanding perfection would the Courts receive perfection. 23.

It is also the contention of the senior counsel for the petitioner / defendant no.1 that since the subject suit was consolidated with another suit, the delay occurred.

24.

The dates with which we are concerned have nothing to do with consolidation and not a single adjournment was owing to the said fact. 25.

Though during the hearing a number of other arguments were urged but at the time of dictation, the senior counsel for the petitioner / defendant no.2 states that he withdraws the other arguments. 26.

No merit is found in the petition.

Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J SEPTEMBER 18, 2017 'gsr'..