Sh. Anoop Kumar vs Sh. Yogesh & Anr.

The present petition under Article 227 of the Constitution challenges the order dated 07.10.2022 passed by the learned Senior Civil Judge-cum-Rent Controller, South-West, Dwarka, New Delhi (“Trial Court”) in case bearing no. CS DJ ADJ 04/2016 titled as “Jagdish vs Sunhari Singh” whereby the learned Trial Court permitted summoning of two more witnesses of the respondent. The petitioner herein is the son of late Sunhari Singh/defendant and the respondent no. 1 is the son of late Jagdish/plaintiff before the learned trial court in the captioned suit.

The limited controversy that arises from the present petition pertains to the petitioner’s grievance that the learned trial court has not adhered to the directions of this court stricto sensu and has allowed the respondent/plaintiff to lead further evidence by summoning two more witnesses after discharging the PW1 upon his cross-examination.

A brief background of the matter is that the learned Trial Court in the captioned suit had closed the right of the respondent to lead plaintiff evidence on 06.04.2022. Thereafter, an application seeking recall of the said order was preferred which came to be dismissed by the learned Trial Court vide order dated 21.05.2022. The said order was challenged before this Court vide petition bearing no. CM(M) 847/2022 titled as “Yogesh vs Sunhari Singh Deceased Thr LRS and Ors” wherein this court passed a judgement dated 21.09.2022 allowing the respondent herein to get his two witnesses i.e. PW1 and PW2 cross-examined.

Thereafter, in pursuance to the judgement of this Court, the respondent’s witness PW1 Yogesh appeared before the learned Trial Court and he was cross examined as noted in the impugned order. However, PW2 was deleted by the respondent and the Learned Trial Court allowed the evidence of the two other respondent witnesses apart from PW1 for 17.11.2022. Seeking to set aside the impugned order, the present petition has been preferred by the petitioner.

Learned counsel for the respondent has neither filed any reply to the petition nor filed any written submissions.

Learned counsel for the petitioner submitted that the petitioner was not heard and the impugned order was passed in ignorance of the directions of this court. The learned trial overlooked that this court only directed for two witnesses i.e. PW1 and PW2 to be cross-examined and did not open the right of the respondent to examine other witnesses.

The learned counsel submitted that the impugned order is contrary to the principles of natural justice and fair play and further grave miscarriage of justice shall be caused to the petitioner if the impugned order is not set aside.

The entire record and the orders of the learned Trial Court placed on the record have been perused. On 06.04.2022 due to non appearance of behalf of the respondent, his right to lead PE was closed. Subsequently, the respondent moved an application under Section 151 CPC for recalling of the order dated 06.04.2022 seeking to allow the respondent to lead evidence. The learned Trial Court after considering that it was almost 10 years old matter pending before the court, dismissed the application.

Being aggrieved with the aforesaid orders, the respondent filed a CM(M) 847/2022 assailing the orders dated 06.04.2022 and 21.05.2022 passed by learned Trial Court. The learned Single Judge of this Court vide judgment dated 21.09.2022 granted one opportunity to respondent to make its witnesses i.e., PW1 and PW2 available for cross examination by the petitioner. It was further observed that in case both the witnesses will not be available on 07.10.2022, the date which was fixed by the learned Single Judge of this Court then the respondent would restrict his evidence to the witness who shall be available. The petition accordingly was disposed of.

The primary grievance of the petitioner herein is that on 07.10.2022, PW1, the witness of the respondent was cross examined and discharged and the other witness i.e., PW2 was deleted by the respondent. Nonetheless, the learned Trial Court without noticing the directions of this Court in CM(M) 847/2022 permitted the witnesses mentioned at serial number 1 and 2 as per list of witnesses of the respondent and allowed them to be summoned.

Accordingly, the impugned order dated 07.10.2022 with respect to summons of witnesses mentioned at serial no. 1 and 2 of the list of witnesses of the respondent and to further lead PE is set aside. In pursuance to the order dated 21.09.2022, PW1 has been cross examined and discharged and PW2 has been deleted by the respondent. Therefore, the learned Trial Court to list the case accordingly for the evidence of the defendant.

Consequently, the petition along with pending application stands disposed of.