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2007 DIGILAW 31 (DEL)

KIMTI BABBAR v. ASHWANI KUMAR

2007-01-05

SANJAY KISHAN KAUL

body2007
SANJAY KISHAN KAUL, J. ( 1 ) CM No. 134/2007 allowed subject to just exceptions. CMM No. 12 of 2007 and CM No. 133/2007 late Sh. Satpal Babbar had filed a suit for specific performance of the agreement to sell dated 13. 03. 1984 executed by him with one Sh. Chand Narayan datta in respect of property no. 30/23, East Patel Nagar, for a purported consideration of Rs 7. 5 lakh. The suit was filed in the year 1987 and since then both the original vendor and vendee have passed away and are represented by their legal representatives. ( 2 ) LATE Sh. Satpal Babbar pleaded an advance payment of Rs 5,100/- in cash on 10. 03. 1984 and Rs 25,000 through a cheque on 13. 03. 1984 against these aforesaid total considerations. The agreement as well as the payments have been disputed by the defendants. The matter has unfortunately been pending for the last twenty years before the trial Court and was at the stage of final arguments after recording of evidence of the parties. ( 3 ) THE petitioners (LR s of the original plaintiff) were aggrieved by an order dated 03. 05. 2006 passed by the Trial Court in terms whereof their right to lead rebuttal evidence was closed and thus filed Civil Revision Petition No. 176-81/2006. This revision petition was disposed of on 16. 10. 2006 noting that the rebuttal evidence was confined to the concerned officer from the Allahabad Bank, paharganj Branch, New Delhi to be examined along with records of payment of cheque no. 717728 dated 13. 03. 1984 from the current account of M/s S. P. Industries to the account of late Sh. Chand Narayan Datta. The second evidence sought to be summoned was of the officer of the Syndicate Bank , Patel Nagar along with the account details of Sh. Chand Narayan Datta's savings bank account. These were sought to be summoned to prove that the payments of advance as alleged had been made to late Sh. Chand Narayan Datta. The Order dated 16. 10. 2006 recorded that one last opportunity was being given by consent to the petitioners herein to summon these two witnesses despite the apprehension of the learned counsel for the respondents that the records were possibly not even available. Since the next date was fixed before the Trial Court as 15. 11. Chand Narayan Datta. The Order dated 16. 10. 2006 recorded that one last opportunity was being given by consent to the petitioners herein to summon these two witnesses despite the apprehension of the learned counsel for the respondents that the records were possibly not even available. Since the next date was fixed before the Trial Court as 15. 11. 2006, the petitioners were permitted to take summons to the said two witnesses for the date of hearing making it clear that no further adjournment would be granted on this account and the petitioners were burdened with costs of Rs 7,500/- for this opportunity granted. ( 4 ) THE matter unfortunately did not end at that as when the witnesses were summoned, it was found that the record being quite old had been weeded out. It may be noticed that according to the petitioners they tried to put the copies of these documents summoned to the witnesses being Expw1/c and Expw1/d and Expw1/e. This was as per the affidavit filed of the petitioners but at the stage of putting such documents, it was found that in fact there were no such documents on record. The petitioners claimed that they made enquiries thereafter from their earlier counsel and moved an application under Order 7 Rule 14 (3) of the code of Civil Procedure, 1908 (hereinafter referred to as the said Code) seeking permission to file these documents. This application was filed on 02. 01. 2007 and the application was dismissed on the same date with costs of Rs 4,000/- It is this order which is now sought to be challenged by the present petition under article 227 of the Constitution of India. ( 5 ) IT may be noticed that prior to the said proceedings on 19. 12. 2006, a new counsel appeared for the petitioners while the earlier counsel was discharged. The new counsel made a prayer that the case be adjourned after 17. 01. 2007 because an application had been filed under Section 24 of the said Code in the court of Ld. District Judge for withdrawal of the case from the concerned Civil judge on the ground that counsel had no faith upon that Court. However, learned district Judge on such an application had directed the Trial Court to proceed with the case according to law. This request was declined by the Trial Court on 19. 10. District Judge for withdrawal of the case from the concerned Civil judge on the ground that counsel had no faith upon that Court. However, learned district Judge on such an application had directed the Trial Court to proceed with the case according to law. This request was declined by the Trial Court on 19. 10. 2006 noticing that a similar application had been earlier moved for adjournment followed by a transfer application which was dismissed by the learned district Judge on 20. 05. 2006 observing that a litigant cannot choose a judge of his own choice. The matter was thereafter fixed for final arguments on 10. 07. 2006 when the revision petition referred to aforesaid was filed and was finally disposed of on 16. 10. 2006. ( 6 ) THE order also notes that even on 11. 12. 2006 when the matter was listed for final arguments, the counsel for the plaintiff was not present and an adjournment was sought on the ground that the counsel was suffering from jaundice whereafter the application for transfer was once again filed, but the district Judge had directed the Trial Court to proceed with the case in accordance with law. The request made by the plaintiffs for deferment was thus declined. Last opportunity was granted fixing the matter on 02. 01. 2007. ( 7 ) LEARNED senior counsel for the petitioner seeks to contend that the Trial court has acted in haste by dismissing the application earlier on 19. 12. 2006 and thereafter on 02. 01. 2007 and that is why the petitioners had lost faith in the presiding Officer. The documents sought to be filed were copies of documents received from the Bank and were relevant for the just decision of the case and the documents had been recovered from the custody of the advocate earlier engaged by the petitioners. ( 8 ) I am unable to accept the contention of the learned senior counsel for the petitioners. The petitioners have managed to prolong the suit for specific performance for almost twenty years. The purported alleged consideration of the property was stated to be Rs 7. 5 lakh in 1984 against which the petitioners claimed to have made an advance of Rs 30,000/ -. The petitioners had not been able to prove the payment of advance. The petitioners have managed to prolong the suit for specific performance for almost twenty years. The purported alleged consideration of the property was stated to be Rs 7. 5 lakh in 1984 against which the petitioners claimed to have made an advance of Rs 30,000/ -. The petitioners had not been able to prove the payment of advance. At the stage when the affidavits were filed by the petitioners and they appeared in the witness box it was known that the said documents were not on the record. No steps were taken thereafter. In fact the petitioners in their rebuttal evidence to cover up the lapse sought to summon the records from the Bank and vide an agreed order dated 16. 10. 2006 were permitted to summon the documents from the Bank. As expected, records were found not available being quite old. The petitioners cannot choose to keep on taking out documents out of their own pocket at any stage of legal proceedings. The matter was at the final hearing stage. In fact learned counsel for the respondents points out that when the application was earlier filed for summoning of the two witnesses, the averment made in the application was that the relevant documents had to be proved through the witnesses as the documents were already on record. ( 9 ) IN my considered view the Trial Court committed no patent or jurisdictional error in passing the impugned order dated 02. 01. 2007. The dilatory tactics of the petitioners are obvious. To my mind, wherever the Trial Judge seeks to conclude the matter, allegations are made to somehow see to it that the suit does not end as interim injunction orders are being enjoyed by the petitioners apart from the doubt cast on the property of the respondents by the pendency of the suit. When the matter was to be finally heard, the petitioners wanted rebuttal evidence. Once rebuttal evidence had been permitted subject to costs, petitioners wanted the case to be shifted, which was not accepted by the district Judge. Thereafter it was claimed that a new counsel had been engaged and the counsel had fallen ill. Last opportunity was granted to address arguments when the application for filing additional documents was filed which has been rejected by the impugned order. ( 10 ) ANOTHER relevant aspect pointed out is that even from the cross examination of late Sh. Thereafter it was claimed that a new counsel had been engaged and the counsel had fallen ill. Last opportunity was granted to address arguments when the application for filing additional documents was filed which has been rejected by the impugned order. ( 10 ) ANOTHER relevant aspect pointed out is that even from the cross examination of late Sh. Satpal Babbar, it has emerged that the cheque of Rs 25,000/- had been given to late defendant in connection with some business purpose which had been encashed. Thus there was really not much relevance even in summoning the evidence. ( 11 ) IN my considered view the application filed by the petitioner as also the present proceedings are abuse of process of court. ( 12 ) THE petition is consequently dismissed as being without merit. The petitioner shall pay costs of Rs 5,000/- to the respondents.