V.B. Gupta, J.@mdashPresent petition has been filed under Article 227 of the Constitution of India by the petitioners, assailing order dated 10th August, 2010 passed by Civil Judge, Delhi. Vide impugned order, trial court dismissed the application under Order 18 Rule 17 Read with Section 151 of the CPC (for short as �Code�), filed by petitioners seeking permission to recall PW1, PW2 and PW3.
2. In 2007, respondent No. 1 (plaintiff in trial court) filed a suit for declaration and permanent injunction against present petitioners (defendants No. 1 and 2 in trial court) and against respondents No. 2 and 3 (defendants No. 3 and 4 in trial court).
3. On 17th March, 2010, PW1, PW2 and PW3 tendered their evidence by way of affidavits. Opportunity to cross-examine these witnesses was given but the same was not availed of as apparent from the order sheet which reads as under:
17.03.2010.
Present: Sh. Mukhtiar Khan, Counsel for plaintiff.
Sh. Gaurav Proxy Counsel for defendants No. 1 and 2.
Sh. B.S. Yadav, Counsel for defendants No. 3 and 4.
PW-1 Shri Bharat Singh, PW-2 Sh. Jagdish and PW-3 Shri Attar Singh examined, opportunity for cross- examination given, nil. In the interest of justice, renotify for remaining PE now on 03.07.2010.
(Vinod Yadav)
SCJ-RC (W)
17/3/10
4. Petitioners filed an application under Order 18 Rule 17 of the Code, to recall PW1 to PW3 for cross-examination which was dismissed by impugned order.
5. It is contended by Learned Counsel that petitioners have a right in law to cross-examine witnesses of respondents. In case no opportunity is granted to the petitioners to cross-examine the witnesses, then grave prejudice would be caused to them.
6. It is also contended that no opportunity for cross-examination of the witnesses was given to the petitioners as apparent from order-sheet of 17th March, 2010, though Proxy Counsel had made a request to the court that main Counsel was not available due to personal reasons.
7. Present petition has been filed under Article 227 of the Constitution of India. It is well settled that jurisdiction of this Court under this Article is limited.
8. In
This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in -
9. In light of principles laid down in the above decision, it is to be seen as to whether present petition under Article 227 of the Constitution of India against impugned order is maintainable or not.
10. As per order dated 17th March, 2010, which has been reproduced above there is nothing on record to show that proxy Counsel on behalf of present petitioners made any request, that main Counsel for petitioners was not available. Even otherwise, it is apparent from record that present petitioners have been just delaying the matter and have taken trial court for granted. As and when they feel like, they appear and as and when they feel like, they don�t appear. Only intention of petitioners is to delay the trial as apparent from impugned order which reads as under;
10.8.2010
Present: Sh. Makhtoor Khan, Counsel for the plaintiff.
Sh. Umesh Hira Nandani, proxy Counsel for defendants No. 1 and 2 along with defendant No. 1 in person.
Sh. B.S. Yadav, Counsel for defendants No. 3 and 4.
An application Under Order 18 Rule 17 r/w Section 151 CPC has been filed on behalf of defendants No. 1 and 2. Copy of this application has already been supplied to the Ld. Counsel for the plaintiff and Ld. Counsel for defendants No. 3 and 4.
The matter has been passed over several times since morning, at the request of defendant No. 1. It is already 2:40 PM. Ld. proxy Counsel for the defendants No. 1 and 2 has advanced arguments on this application. Neither the plaintiff nor the defendants No. 3 and 4 have filed reply to this application. The learned Counsels for plaintiff and defendants No. 3 and 4 have argued the application without filing reply.
By way of this application, defendants No. 1 and 2 want recalling of PW1, PW2 and PW3 for cross-examination, on the ground that the opportunity for cross examining the aforesaid witnesses was not given to them.
The Ld. Counsel for defendants No. 3 and 4 has placed reliance upon some judgments to elucidate the law on the subject in hand, however, I will advert to said judgments a little later. Firstly, a perusal of record would give us factual position about the diligence of the parties or otherwise in prosecuting this case. On 01.05.2008, no one had appeared for defendants No. 1 and 2 and this Court adjourned the matter for 08.08.2008. On next date, one proxy Counsel had appeared for defendants No. 1 and 2. This Court framed the issues in the matter on the said date, in the absence of defendants No. 1 and 2. Therefore, the matter was sent to the Mediation Centre wherefrom, the matter returned back unsettled.
On 06.04.2009, again nobody appeared for defendants No. 1 and 2. On 27.01.2010, the advance copies of the affidavit by way of evidence of PW1, PW2 and PW3 were supplied to the Ld. Counsel for the defendants No. 1 and 2. On that date (i.e. 27.01.2010), again Counsel for defendants No. 1 and 2 did not appear and the witnesses i.e. PW1 to PW3 were returned unexamined.
On the next date of hearing, i.e. on 17.03.2010 again Counsel for defendants No. 1 and 2 did not appear and one proxy Counsel appeared, who expressed his inability to cross examine the witnesses of plaintiff. On the next date of hearing i.e. 03.07.2010, again one proxy Counsel appeared for defendants No. 1 and 2.
A perusal of the aforesaid order sheets reveals that defendants No. 1 and 2 have been prosecuting the case in a very casual manner. It is not that defendants No. 1 and 2 do not know about the seriousness and pendency of this case. There is another case between the parties, being suit No. 17/2007, which is presently pending in the court of Sh. Sanjay Sharma, Ld. ASCJ, wherein defendants No. 1 and 2 have already been injuncted from dispossessing defendants No. 3 and 4 from the suit property.
11. As per impugned order, more than sufficient opportunities have been granted to petitioners to cross-examine the witnesses. As apparent from record, petitioners and their Counsel have been playing hide and seek, as whenever they feel like they appear in the Court and whenever they do not want to conduct the case, Proxy Counsel is sent to Court just to take dates. The only purpose of filing of application under Order XVIII Rule 17 of the Code is to delay the proceedings pending in the Trial Court.
12. It is well settled that bogus and frivolous applications being filed deliberately by the litigants in order to delay the trial, should be dealt with heavy hands. No leniency should be shown to those litigants who in order to cover up their own inefficiency and negligent act try to cause obstruction in the administration of justice. Strong message is required to be sent to those litigants who are in the habit of challenging each and every order of the trial court even if the same is based on sound reasoning and also to those litigants who chose to file meritless applications.
13. Since, there is no infirmity or illegality in the impugned order, the present petition under Article 227 of the Constitution of India is not maintainable.
14. This petition being most bogus and frivolous one which has been filed just to delay the trial and to waste time of the court, is hereby dismissed with costs of Rs. 10,000/- (Rupees Ten Thousand only).
15. Petitioner is directed to deposit the costs by way of cross-cheque with Registrar General of this Court, within four weeks from today
16. List for compliance on 18th October, 2010.
CM No. 15987/2010 (stay)
17. Dismissed.
