Master Builders vs The Government of United States and Another

V.K. Shali, J.

IA No. 626/2010

More than 24 years have gone by, still the case is pending for final adjudication. The question which has arisen for consideration is whether Ms. Freyan Desai, Advocate of this Court who was appointed as a Local Commissioner to inspect the site by this Court vide order dated 31.7.1991 along with one Sh. R.S. Sodhi, an Architect should be summoned as a Court witness. It may be pertinent here to mention that Ms. Freyan Desai, Advocate was earlier cited as a witness by the plaintiff in this case and she had also filed her affidavit on 16.1.2003 by way of examination in chief but later on she was not examined as a witness and consequently the affidavit could not be tendered by her in evidence.

The brief background of the case is that the plaintiff who is a building contractor filed the present suit for recovery of Rs. 1,18,22,968.35. The allegations were that he had been engaged by the defendant/Government of United State of America for the purpose of construction of some flats at 14 and 16, Amrita Shergill Marg, New Delhi. The total contracted price of the work was Rs. 80.63 lacs. The case of the plaintiff was that he was entitled to more money, while as the defendant had taken the plea that instead of Rs. 80.63 lacs, the plaintiff had received actually payment of Rs. 1.28 crores and they were further demanding additional amount of Rs. 1.80 crores.

The defendant on its part filed two separate suits. One suit bearing CS(OS) No. 2345/90 was for injunction and the other suit bearing CS(OS) No. 932/86 for recovery for a sum of Rs. 1.18 crores on account of various acts of omission and commission on the part of the present plaintiff in executing an alleged sub-standard work and wrongfully withholding of the property of the defendant. All suits were consolidated vide order dated 26.11.90.

Issues were framed on 1997 though the first suit which is the present suit, was filed in 1986. The plaintiff closed its evidence on 23.4.2009.

Vide order dated 31.7.1991, the Court had appointed an Architect by the name of one Sh. R.S. Sodhi and Ms. Freyan Desai, Advocate on the request of the defendant as the Local Commissioner to inspect the premises and report the stage of construction. Sh. R.S. Sodhi filed his report and Ms. Freyan Desai filed her separate report on 04.12.1991. The necessity of appointing an Architect seem to have arisen because the possession of the suit property itself was obtained by the defendant by virtue of an Court order.

On 19.7.1991, the defendant filed an application for inspection of the property on the ground that Mr. R.S. Sodhi, Architect had not presented the correct picture in his report after carrying out inspection and therefore, a fresh inspection should be carried out in terms of the specifications of the contract by Mr. R.S. Sodhi and an advocate jointly.

Thus vide order dated 31.7.1991, this Court directed Sh. R.S. Sodhi and Ms. Freyan Desai to carry out fresh inspection after giving notice to the parties. This inspection was carried out and thereafter on 13.11.1991, the Court directed Ms. Freyan Desai to verify the photographs which was taken by the defendants in the light of the factual position prevailing at the site. There were around 250 photographs which were verified by Ms. Freyan Desai and she appended her signature after inspection. The plaintiff filed an affidavit by way of evidence of three witnesses whom he examined during the course of trial. The plaintiff had chosen to file affidavit of Ms. Freyan Desai on 16.1.2003 but she was not examined as a Court witness on the ground that she was not traceable and as she had shifted her residence to Bombay. The plaintiff�s evidence has been closed on 23.4.2009 and thereafter 2-3 opportunities were given to the defendant for filing affidavit by way of evidence which was not availed of and consequently the defendant was visited with imposition of cost. It is at this stage that the defendant has filed the present application u/s 151 CPC for summoning of Ms. Freyan Desai as a Court witness or in the alternative prayed that the witnesses of the plaintiff be recalled for the purpose of further cross examination by the defendant.

The reason given by the defendant for summoning Ms. Freyan Desai as a Court witness is that the plaintiff during his cross examination was shown certain photographs which were verified by the Local Commissioner but he denied these photographs and expressed his ignorance as to whether they were of the site in question. It is in this background, the defendant has urged that Ms. Freyan Desai who has initialed the photographs after the visit to the site, to be summoned as a Court witness for proving these photographs.

So far as the plaintiff is concerned, it has been considered that even though Ms. Freyan Desai�s affidavit was filed but it was not necessary for him to examine her as a witness. It was open to the defendant to examine Ms. Freyan Desai as the defendant�s witnesses rather than as the plaintiff�s witnesses. It was also stated by the plaintiff that this is only a ploy to delay the disposal of the main matter by the defendant. It is also contended by the learned Counsel for the plaintiff that the testimony of Ms. Freyan Desai is not at all relevant and the defendant has to prove his case otherwise also.

I have heard the learned Counsel for the plaintiff as well as Mr. Arun Mohan, learned senior counsel for the defendant. I have gone through the record.

A perusal of the entire record of the order sheet shows that though the suit was filed in the year 1986 and more than 24 years have elapsed but none of the parties seems to be interested in expeditious disposal of the matter. After framing of issues in 1997, repeatedly both the sides filed applications, as a consequence of which the question of recording of evidence was side tracked.

The plaintiff had filed an affidavit by way of evidence of number of witnesses including that of Ms. Freyan Desai who admittedly had been appointed as a Local Commissioner by the Court and was required to inspect the site as well as she has signed the photographs as they were taken by the defendant her testimony becomes important as she is aware about the ground realities available at the spot. It is in this context that the plaintiff himself had chosen to file an affidavit of Ms. Freyan Desai as a witness in the instant case. It cannot be said by any stretch of imagination that Ms. Freyan Desai and her testimony is not material to the case inasmuch as this is a suit for recovery filed by the plaintiff against the defendant for having executed the work and yet not having been paid as against which the defendant has set up a counter claim for damages as well as the suit for injunction. The testimony of Ms. Freyan Desai is really relevant for the just decision of the case. It is surprising that though the plaintiff had chosen to file an affidavit by evidence of this witness in the year 2003 but ultimately he has chosen not to examine Ms. Freyan Desai as a witness.

The contention of the learned Counsel for the plaintiff is that Ms. Freyan Desai can be produced as a witness of the defendant is not correct because the plaintiff has already chosen to file an affidavit of Ms. Freyan Desai which is on record. If Ms. Freyan Desai is produced as a witness by the defendant, he will not have the right to cross examine which he may like to exercise. This right would have been available to him in case she was examined by the plaintiff. If that be so, there cannot be any direction by the Court to the plaintiff, to necessarily produce Ms. Freyan Desai as plaintiff�s witness, notwithstanding the fact that he has chosen to file her affidavit.

Under these circumstances, I feel the only course open to the Court is to exercise the power of the Court under Order 16 Rule 14 CPC and to summon Ms. Freyan Desai as a Court witness.

I accordingly, exercise the power under Order 16 Rule 14 CPC and summon Ms. Freyan Desai as a court witness for the purpose of elucidating the facts in dispute with regard to the possession which was available on the spot at the time of her inspection. The entire purpose of Order 16 Rule 14 CPC is to empower the Court to summon any person as a court witness in case, it is established by preponderance of probabilities that the testimony of such a witness will help the court in arriving to the correct decision. Accordingly, the application of the defendant to that extent is allowed.

CS(OS) No. 932/86

Post the matter before the Joint Registrar on 11.8.2010 for further recording of evidence of the defendant.