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2014 DIGILAW 3230 (DEL)

Lakshmi Chand Singal (Decd) Thr Lrs. v. Tara Chand (Decd) Thr Lrs.

2014-12-10

VALMIKI J.MEHTA

body2014
JUDGMENT : Valmiki J. Mehta, J (Oral):-- 1. This petition under Article 227 of the Constitution of India is filed by the plaintiff in the suit, impugning the order dated 18.8.2011 of the trial Court, which has refused to recall the order dated 14.01.2009 by which the right of evidence of the plaintiff was closed. I may note that the subject suit is of 1975 vintage i.e. the suit is around 40 years old. 2. Impugned order records that evidence of the petitioner was closed back in 1998. Thereafter High Court granted one opportunity to the petitioner to lead evidence but still evidence was not led in spite of eight opportunities and thereafter right to evidence of the plaintiff was closed. The impugned order also records that the High Court order dated 3.10.2006 in CRP No. 689/1997 granted opportunity to the plaintiff to only summon the witness from MCD for proving certified copies of documents on record but the said witness had appeared on 10.05.2007 in court and stated that no record was available. Therefore, no further evidence was to be led. In any case more than sufficient opportunities were granted to the plaintiff for leading evidence. The relevant discussion contained in para 3 and 4 of the impugned order read as under : “3. In reply defendant has opposed the application stating that plaintiff himself was not present when the matter was called for hearing. It is also stated that evidence of plaintiff was closed in the year 1998 and thereafter plaintiff challenged the said order in Hon’ble High Court. Hon’ble High Court granted one opportunity to plaintiff to lead evidence but plaintiff failed to lead evidence despite eight opportunities and failed for second time to lead evidence. It is further stated that the plaintiff has also failed to bring on record the translated document as directed by the court. 4. Perusal of record shows that Hon’ble High Court by order dated 03.10.06 in CRP No. 689/1997 granted an opportunity to plaintiff to summon the witness from MCD only for proving certified copies of documents on record subject to cost of Rs. 3000/-. Order dated 10.05.07 shows that summoned witness from MCD appeared in the court and submitted that record is not available with the MCD and said witness was discharged. 3000/-. Order dated 10.05.07 shows that summoned witness from MCD appeared in the court and submitted that record is not available with the MCD and said witness was discharged. Thereafter, an application under section 114 CPC recalling order dated 10.05.2007 discharging the said witness was also dismissed by my Ld. Predecessor by order dated 09.07.08. However, after discharging the witness from MCD plaintiff was given opportunity to lead remaining PE on 18.11.07. From 13.11.07 to 14.01.2009 for more than one year plaintiff has failed to lead any evidence. On 20.08.08, 12.09.08, 12.12.08 and 14.01.09 plaintiff failed to lead any evidence despite various opportunities. From the record it is clear that plaintiff has been negligent in leading evidence despite various opportunities given by Hon’ble High Court as well as by this court. A litigant adopting delaying tactics do not deserve soft hand of law. I do not find any merits in the present application. Application under order 47 CPC filed by plaintiff recalling order dated 14.01.2009 is dismissed.” (underlining added) 3. In view of the above I do not find any flaw in the impugned order requiring exercise of extraordinary and discretionary jurisdiction of this Court under Article 227 of the Constitution of India. 4. Dismissed.