CR No.5999 of 2010(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh. CR No.5999 of 2010(O&M) Decided on Sept. 27,2010. Ravi Sharma -- Petitioner vs. Sanjiv Kumar Jain and another -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.S.S.Behl,Advocate,for the petitioner Mr.Chetan Mittal,Sr.Advocate,with Mr.Kunal Mulwani,Advocate,for the respondents. Rakesh Kumar Jain, J, (Oral) This revision petition is at the instance of defendant No.1 against the order dated 9.9.2010 passed by the trial Court by which his evidence has been ordered to be closed. Brief history of the case is that the plaintiff has filed suit for possession by way of specific performance of the agreement to sell dated 4.12.2005. The total sale consideration is allegedly ` 2,22,00,000 out of which ` 22,00,000 was allegedly paid as earnest money. During the proceedings, the trial Court vide its order dated 10.12.2009,directed the plaintiff to deposit balance sale consideration of ` 2,00,00,000 in the name of the Court, in Fixed Deposit in some nationalized bank within 15 days to show their readiness and willingness for performance of the contract. The said CR No.5999 of 2010(O&M) 2 order was challenged by the plaintiff by way of Civil revision No.7647 of 2009 which was disposed of on 10.3.2010, with the following order:- “The controversy in this revision is with regard to order passed by Civil Judge (Sr. Division), Gurgaon dated 10.12.2009 whereby, he was ordered the plaintiff to deposit balance sale consideration mentioned in the agreement to sell dated 4.12.2005, in the name of the Court, in the form of fixed deposit in some nationalized bank within a period of 15 days to show their readiness and willingness to perform their part of agreement. It has transpired, during the course of argument, that the petitioners would deposit the balance amount of sale consideration as directed in the impugned order provided the suit is decided by the learned trial court within a stipulated period, preferably within a period of three months from the date of receipt of certified copy of this order and the respondents/defendants would cooperate in the disposal of the suit. It is submitted by learned counsel for the petitioners that despite the fact that the evidence is continuing since 2007, yet the witnesses have not been cross-examined by the defendants. Sh. Sanjiv Kumar Kakkar, Advocate appearing on behalf of seller (respondent No. 1) and Sh. Amait Kamboj, Advocate appearing on behalf of HUDA (respondent No.2) have stated at the bar that they would fully cooperate with the proceedings of the trial Court and would not take any date CR No.5999 of 2010(O&M) 3 unnecessary. It is also submitted on behalf of the respondents that they would assist the Court for the disposal of the suit within the stipulated period. On these assurances, learned counsel for the petitioners submits that he is not interested in pursuing the present revision petition. However, it is submitted that another 15 days time may be granted from the date of order of this Court for the purpose of depositing the balance sale consideration. In view of the fair stand taken by both the counsel for the parties, the present petition is dismissed, as not pressed, so far as the impugned order is concerned. However, the aforesaid order is kept intact with liberty to the petitioners to deposit the balance consideration within a period of 15 days from the date of passing of this order. Since, it is an order obtained by both the parties on their own consent, therefore, it may not be treated as precedent. In view of the aforesaid, the trial court is directed to complete the trial of the suit as early as possible preferably within a period of three months”. The aforesaid order was passed on the concession given by both the learned counsel for the parties, namely (i) plaintiff gave concession of depositing the balance sale consideration within 15 days and (ii) defendant No.1. gave concession that the suit may be decided as soon as possible, preferably within a period of three months. The trial Court then adjourned the case to 15.3.2010. On that date, the plaintiff had examined two witnesses. One of the plaintiffs namely Sanjiv Jain prayed for filing of additional affidavit CR No.5999 of 2010(O&M) 4 in addition to the the affidavit he had already tendered in his examination-in-chief, which was objected to by the learned counsel for defendant No.1. On the said date, defendant No.2 i.e. Haryana Urban Development Authority (HUDA) was proceeded against ex- parte and the case was adjourned to 19.4.2010. Thereafter, the case was adjourned to 20.4.2010 for arguments on the issue as to whether additional evidence can be tendered by the plaintiff. On 20.4.2010, the order was pronounced which reads as under:- “Arguments on the point as to whether additional affidavit can be submitted by the plaintiff or not have already been heard. Perusal of record reveals that the plaintiff No. 1 Shri Sanjeev Kumar Jain tendered his affidavit Ex. PW1/A in his examination-in-chief on dated 12.11.2007 but his cross examination was deferred on the request of learned counsel for the defendant on that day and his cross examination has not been recorded so far. Now the plaintiff No. 1 Shri Sanjeev Kumar wants to adduce his additional affidavit dated 15.3.2010 in his examination-in-chief alongwith his previous affidavit dated 12.11.2007. Learned counsel for the defendant No. 1 contended that the plaintiff cannot submit or adduce his additional evidence in his examination-in-chief. Learned counsel for the defendant has placed reliance on the case law cited as 2004(6) Supreme Court Cases 26 and 1999(1) Recent Civil Reports 691(P&H). But in the opinion of this Court, the aforesaid contention of learned counsel for CR No.5999 of 2010(O&M) 5 the defendant is not sustainable. As mentioned above, cross examination of plaintiff No. 1 Shri Sanjeev Kumar has not been recorded so far. In case titled as Smt. Mukesh Rani Deb (Majumder) & Anr Vs. Haripada Deb. 2008(4) Civil Court Cases 238 (Gauhati). The parties were directed to file affidavits of examination- in-chief. Thereafter, defendant sought permission to file additional affidavit of examination-in-chief of the witness. The Hon'ble High Court held that additional affidavit of examination-in-chief amounts to further examination-in-chief of the witness. Such further examination-in-chief can be offered by way of additional affidavit, if the facts of a given case so warrant. Similarly, in case titled as Rajesh Verma Vs. Aminex Holdings & investments & Ors. 2008(3) Civil Court Cases 160 (Bombay), the examination-in- chief of the plaintiff was recorded by way of affidavit. There was failure to mention certain details in the affidavit. The Hon'ble High Court held that it does not preclude the court from permitting the plaintiff to lead further evidence of examination-in- chief before the Court in addition to the affidavit in lieu of examination-in-chief. No provision of CPC bars the Court from recording further examination-in-chief of a witness. In these circumstances and keeping in view the aforesaid findings given by the Hon'ble High Courts of Guhati and CR No.5999 of 2010(O&M) 6 Bombay in the cases mentioned above, this Court is of the view that plaintiff is entitled to submit his additional affidavit dated 15.3.2010 in addition to his previous affidavit Ex.PW1/A in his examination-in- chief. The case is adjourned to 4.5.2010 for recording evidence of plaintiff No. 1 Sh. Sanjeev Kumar”. Although, the case was adjourned to 4.5.2010 for recording of evidence of plaintiff No.1 Sanjiv Kumar Jain, but on the same date, on the request of learned counsel of the plaintiff, the case was taken up and the date 4.5.2010 was changed to 5.5.2010 with the consent of learned counsel for the parties. It is pertinent to mention here that against the order dated 20.4.2010 by which the objection raised by defendant No.1 against additional affidavit to be filed by the plaintiff was rejected, a Civil Revision No.3806 of 2010 was preferred by the petitioner before this Court which was ultimately dismissed as withdrawn. On 5.5.2010 the plaintiff examined PW-3, whose statement was partly recorded and he was directed to be present at 11.30.a.m. After adjourning the hearing on the same date, the Court recorded that the case was called several times but the said PW-3 did not come present. Hence, the following order was passed:- “Case called out several times but PW Subhash Kumar Clerk has not come present before the court. It is already 12:30 P.M. Further wait is unjustified. Hence, PW Subhash Chander Clerk be summoned through bailable warrant for 12.5.2010 in the sum of ` 5000 with one surety in the like amount. It is pertinent to here mention that PW-3 Subhash Chand did not sign his statement recorded before lunch break. At this stage, an application for allowing the expert Naresh CR No.5999 of 2010(O&M) 7 Kataria to obtain the photographs of the signatures of Ravi Sharma from the documents available on the court file and also from the file of Estate Office HUDA Sect. 14 Gurgaon regarding SCO No. 8 Sect. 14 Gurgaon lying with court file is filed by learned counsel for the plaintiff. Copy of the application is given to learned counsel for the defendant. For reply and consideration on the aforesaid application, the case is adjourned to 12.5.2010. The plaintiff is also directed to bring his remaining evidence on the date fixed. The plaintiff Sh. Sanjiv Kumar Jain is also present in the court. Statement of the plaintiff shall be recorded on the next date of hearing on the request of learned counsel for the parties:” After that, the case was adjourned to 12.5.2010. On that date, evidence of PW-3 was completed and the case was adjourned to 24.5.2010 for remaining evidence of the plaintiff. On that date, following order was passed :- “One PW i.e. Sanjeev Kumar Jain is present and he has tendered his additional affidavit Ex. PW-1/B in examination chief. An application for deferring the cross examination of PW-1 is filed by learned counsel for the defendant on the ground that the defendant has filed a revision petition in Hon'ble High Court against the order of this court dated 20.4.2010. The adjournment sought by learned counsel for the defendant is not opposed by learned counsel for the plaintiff. Therefore, the case is adjourned to 2.6.2010 for cross examination of PW-1 and CR No.5999 of 2010(O&M) 8 for other evidence of the plaintiff”. Thereafter,the case was adjourned to 2.6.2010. On that date, statement of PW-1 was partly recorded and his cross examination was deferred for 5.6.2010. On 5.6.2010, one PW was present for his cross examination but on the request of learned counsel for the parties, the case was adjourned to 14.6.2010 for his cross examination. On 14.6.2010, cross examination of PW-1 was completed and his evidence was over . Another witness Naresh Kataria was present and his examination-in-chief was recorded but his cross examination was deferred on the request of learned counsel for the defendant and the case was adjourned to 21.7.2010. On 21.7.2010, said witness was present but his cross examination was deferred at the request of the learned counsel for the defendant and the case was adjourned to 7.8.2010. On that date, cross examination of Naresh Kataria was completed and the case was adjourned to 14.8.2010 for evidence of the plaintiff and last opportunity was granted. On 14.8.2010, the plaintiff closed his evidence and the case was adjourned to 30.8.2010 for evidence of the defendants. On 30.8.2010, the trial Court recorded the following order:- “No DW is present. It is stated by Shri M.S. Vashistha, learned counsel for defendant No. 1 that some date in the month of October 2010 may be granted for evidence of the defendants. It is told by this Court to learned counsel for defendant No. 1 that Hon'ble High Court vide order dated 10.3.2010 has directed this Court to decide this case within period of three months. An application has been written by this Court to the Registrar. Hon'ble High Court of Punjab & Haryana, Chandigarh on 23.7.2010 with a request that a period of atleast six more months from that day might be granted for the disposal of present suit but, no response of CR No.5999 of 2010(O&M) 9 the same has been received so far. Therefore, no long date can be given in this case. On this, learned counsel for defendant No. 1 has started arguing in loud voice that in case long date cannot be given, then evidence of defendant No. 1 be closed and he will file revision against the said order before the Hon'ble High Court and in case no relief will be granted by the Hon'ble High Court then, he will approach the Hon'ble Supreme Court of India. Since Shri M.S. Vashistha, is a very senior lawyer, therefore, he is advised not to raise volume of his voice but he did not stop and states that long adjournments are given in other cases and why short adjournments are being given in this case. Shri M.S. Vashistha further states that he has to summon witnesses in this case. But no list of witnesses has been placed on record by the defendants so far. Shri M.S. Vashistha further states that his client is not getting justice from the courts. In these circumstances and keeping in view the aforesaid act and conduct of Sh. M.S. Vashistha, counsel for defendant No. 1. I do not want to try this case, therefore, file be sent to learned District & Sessions Judge, Gurgaon with the request to transfer this case to some other court. Parties/counsels are directed to appear before learned District & Sessions Judge, Gurgaon on 1.9.2010”. After that,the case was adjourned to 1.9.2010. On that date, the matter was put up before the learned District Judge, Gurgaon, for the CR No.5999 of 2010(O&M) 10 purpose of transfer of the case from the Court of Mr.R.K. Yadav, Civil Judge (Senior Division),Gurgaon as defendant No.1 had allegedly lost confidence in the said Court. However, learned District Judge,deprecated the objection of defendant No.1, but nonetheless keeping in view the request of the Presiding Officer, withdrew this matter from his Court and transferred the same to the Court of Mr.D.N.Bhardwaj, Addl. Civil Judge, Gurgaon, for its disposal and the parties were directed to appear there. On 1.9.2010, a request was made by defendant No.1. for a longer date i.e. at least for 1 and ½ months as he had to summon the witnesses from Chandigarh. However, the trial Court was of the view that since it is a time bound case in view of direction of the High Court given on 10.3.2010, defendant No.2, who was proceeded ex-parte had in the meantime joined the proceedings would also request to lead his evidence, therefore, the said request of learned counsel for defendant No.1 was not accepted and the case was adjourned to 6.9.2010 for his evidence. On 4.9.2010, defendant No.1 moved an application for summoning the witnesses for the purpose of his evidence. The contents of the said application are as under:- "In the above named suit the witnesses named below may kindly be summoned the evidence of the defendant No. 1 for the date fixed. Expenses and diet money may be got deposited P.F. is filed herewith: Rajesh Sharma S/o Sh. Kanshi Ram Sharma R/o A-2/2, Rana Partap Bagh, Delhi- 7. Official concerned through Manager of the State Bank of India, Rana Partap Bagh, branch Delhi-7 along with statement of account duly attested for the period of December 2005, of Account No. S.B. 10442020474 of Sh. Ravinder Sharma @ Ravi Sharma, and record consisting of Postal receipt dt. 10.12.2005 acknowledgment due CR No.5999 of 2010(O&M) 11 and the postal envelop sent by Bank to Centurian Bank of Punjab Chandigarh for encashment of Cheque No. 393873 dt. 4.12.2005 for Rs. 8 lacs and was returned un- encashed and record with entries in respect of sending of cheque and date of its return without encashment. Official of the H.D.F.C. Bank through its Manager M-39 outer circle, Connaught Place New Delhi along with account opening forum, with introduction record of Account No. 0011-423600051 of the Ravi Sharma name Rana Pratap Bagh Delhi and also bring with him, the deposit of slips of the amount of Rs. 20 lacs of 5 D.Ds of Rs. 4 Lacs each having No. 895126 to 895130”. According to the aforesaid application, defendant No.1 only wanted to examine three witnesses after depositing ` 600 as diet money. Besides this application, defendant No.1. did not file any application alongwith diet money for the purpose of his evidence. On 6.9.2010, two DWs were present. DW-2 Ravi Sharma was partly examined and his cross examination was deferred as per the request of learned counsel for the plaintiff and the case was adjourned to 9.9.2010 for remaining evidence of the defendants on which date, the impugned order was passed. On 9.9.2010, one DW Ravi Sharma was examined but no other witness was present on behalf of defendant No.1.Learned counsel for defendant No.1. prayed for summoning the official witnesses but on 1.9.2010, while adjourning the case for 6.9.2010, that defendant No.1. was directed to concluded his evidence. Since he failed to conclude his evidence, therefore, his evidence was closed and the case was adjourned to 16.9.2010 for evidence of defendant No.2. Aggrieved against the aforesaid order, the present revision petition has been filed on 15.9.2010 and re-filed on 16.9.2010 which was listed before this Court on 17.9.2010 and notice CR No.5999 of 2010(O&M) 12 of motion was issued . At that stage, learned counsel for the plaintiff had appeared and submitted that next date before the trial Court is 27.9.2010, therefore, this case may be decided before that date. It was accordingly, adjourned to 22.9.2010. On that date, on the request of learned counsel for the petitioner, the case was adjourned to 23.9.2010. On the adjourned date, it was argued by learned counsel for the respondent that he has no objection if the impugned order is set aside and one more opportunity is granted to the petitioner/defendant No.1. to lead his entire evidence, but learned counsel for defendant No.1 submitted that entire evidence cannot be led on a single date as he has to summon some official witnesses from Chandigarh, therefore, on 23.9.2010, following order was passed:- “Present::Mr.S.S.Behl, Advocate, for the petitioner Mr.ChetanMittal, Sr.Advocate,,with Mr.Kunal Mulwani,Advocate,for the respondents. Learned counsel for the petitioner prays for time to disclose as to whether besides the witnesses who have been mentioned in the application filed before the Court below, how many other witnesses he wanted to examine and whether any application in this regard has been moved or not ? CR No.5999 of 2010(O&M) 13 On his request, adjourned to 27.9.2010”. Today, learned counsel for defendant No.1 has shown an application dated 21.1.2008, alleged to have been moved before the trial Court in which 11 witnesses have been mentioned, however, it appears that the said application was neither pressed nor any attempt was ever made by defendant No.1 to summon those witnesses as no diet money and process fee was deposited. Be that as it may, learned counsel for defendant No.1 has submitted that a statement was made before this Court on 10.3.2010 that the trial of this case may be concluded within a period of three months, but it does not mean that the Court will not give sufficient opportunity to defendant No.1. for the purpose of leading evidence. He further submits that since 10.3.2010, the plaintiff had taken five months to conclude his evidence till 14.8.2010 whereas defendant No.1. has been given only three/four short dates i.e.30.8.2010,1.9.2010,6.9.2010 and 9.9.2010. It is submitted that at least three months' time be granted to the petitioner for leading his evidence. In reply, learned Senior Counsel appearing on behalf of the plaintiff has submitted that the act and conduct of defendant No.1. does not entitle him any concession from this Court because after suffering a statement on 10.3.2010, he did not cooperate in the proceedings before the Court below as on three dates, cross examination of the plaintiff was deferred by defendant No.1. Moreover, because of the act and conduct of learned counsel for defendant No.1, the trial Court had to put up the case to the learned District Judge, Gurgaon, which was ultimately transferred to some other Court. He also submitted that there is only one application filed by defendant No.1 for the purpose of examination of the witnesses on 4.9.2010 who are from Delhi, for which long date prayed for is not justified. I have heard learned counsel for the parties in detail. No doubt, in terms of order dated 10.3.2010, the plaintiff had deposited ` 2,00,000,00 in the name of the Court in the Bank and a statement was made by defendant No.1. that the suit may be CR No.5999 of 2010(O&M) 14 decided as early as possible, preferably within a period of three months and for that the trial Court is also not at fault at all. However, keeping in view the facts and circumstances of this case, I am of the view that defendant No.1. can be granted some more time in order to lead his evidence. Even the learned Senior Counsel for the plaintiff has conceded that the impugned order may be set aside and one more opportunity may be provided to defendant No.1. to lead his entire evidence. In view of the above discussion, this revision petition is allowed and defendant No.1. is granted 1 and ½ months' time, to produce his entire evidence at his own risk and responsibility, from the date of passing of this order, subject to payment of ` 10,000 as costs. Sept 27,2010 (Rakesh Kumar Jain) RR Judge