Ajay Sharma vs Mohinder Paul Singh

Hima Kohli, J.—The present Chamber Appeal has been filed by the plaintiff/appellant against the order dated 05.08.2011 passed by learned Joint Registrar, dosing the plaintiffs evidence. A brief background of the case is considered relevant for deciding the appeal. The plaintiff has instituted the accompanying suit against the defendant for the relief of specific performance of an Agreement to Sell in respect of a property situated at Janakpuri. The suit was listed for admission on 12.05.2008 and summons were issued to the defendant: On the same date, an ex parte ad interim injunction was granted in favour of the plaintiff, directing the defendant to maintain status quo in respect of the title and possession of the suit property. The plaintiff was also directed to deposit the balance sale consideration in Court within a period of two weeks. Thereafter on 13.01.2009, counsel for the defendant had stated on instructions from his client that the defendant was ready and willing to sell the property in question to the plaintiff on payment of the balance sale consideration and that he could not produce the completion certificate of the property, but would be able to hand over the other relevant documents. In view of the willingness shown by the defendant to execute the Sale Deed in respect of the suit property and his having made his stand clear in respect of the completion certificate, counsel for the plaintiff was directed to obtain instructions as to whether the plaintiff was still willing to proceed with the suit. In view of the aforesaid development, the requirement to deposit the balance sale consideration by the plaintiff was waived.

Thereafter, pleadings were completed in the suit and issues were framed on 06.10.2009. On the said date, both parties were directed to file the list of witnesses within four weeks. The plaintiff was also directed to produce the evidence by way of affidavits for examination-in-chief of his witnesses within eight weeks. With these directions, the suit was listed before the Joint Registrar on 21.12.2009. On 21.12.2009, the Joint Registrar noted that the list of witnesses had not been filed by the parties within the stipulated time and both parties had sought further time to do so. Two weeks'' further time was granted to the parties to file their affidavit by way of evidence. Thereafter, the suit was listed for examination and cross-examination of the plaintiff''s witnesses on 26.03.2010.

On 26.03.2010, the Joint Registrar again observed that the list of witnesses had not been filed by the parties. Further one week''s time was granted to the parties to file their list of witnesses. It was also directed that if the plaintiff did not file the affidavits of his witnesses, then the same would not be taken on record and the suit was adjourned to 09.04.2010. On 09.04.2010, the plaintiff filed affidavit qua admission/denial of documents of the defendant and he was examined and cross-examined in part as PW 1. His cross-examination was thereafter deferred to 10.08.2010.

On 10.08.2010, counsel for the plaintiff had sought an adjournment on the ground that her witness was indisposed. The suit was therefore adjourned to 22.09.2010. On 22.09.2010, yet another adjournment was sought by the counsel for the plaintiff on the ground that the witness was indisposed and the suit was adjourned to 11.01.2011, On 11.01.2011, the Joint Registrar was on leave and the suit was adjourned to 22.02.2011. On 22.02.2011, counsel for the plaintiff had sought an adjournment on the ground that the witness had to leave the Court on account of an emergency. At her request, the suit was adjourned to 25.03.2011. On 25.03.2011, the Presiding Officer was on leave and the suit was adjourned to 07.04.2011.

On 07.04.2011, once again, an adjournment was sought on behalf of the plaintiff, on the ground that the counsel was indisposed. Though the request for an adjournment was opposed by the other side, last opportunity was granted by the learned Joint Registrar to the plaintiff to conclude his evidence, subject to payment of costs of ` 10,000/- and the suit was adjourned to 05.08.2011.

On 05.08.2011, examination of PW 1 was concluded and he was discharged. However, the costs imposed on 07.04.2011 had not been paid by then and proxy counsel appearing for the counsel for the plaintiff undertook to pay costs in the course of the day. Thereafter, the Joint Registrar had noted that no other witness of the plaintiff was present or summoned, nor had the list of witnesses been filed by the plaintiff. In view of the aforesaid position, counsel for the defendant submitted that the plaintiff''s evidence may be closed. The Joint Registrar recorded the submission of the proxy counsel appearing for the counsel for the plaintiff that she had filed the list of witnesses on 04.08.2011, However, as he found that the said list of witnesses was not on record, the plaintiff''s evidence was dosed and the suit was adjourned to 28.11.2011 for recording the defendant''s evidence.

Counsel for the plaintiff submits that on 5.8.2011, the list of witnesses filed by the plaintiff was not on record as the same had been filed in the Registry only on the previous day, i.e., on 04.08.2011, He further explains the delay on the part of the plaintiff in filing the list of witnesses within the timeline granted by the Court or within the extended timeline as per the learned Joint Registrar''s orders on the ground that the parties were trying to negotiate an out of court settlement and the plaintiff had remained under a bonafide impression that the suit would be settled and therefore, no steps were taken for filing the list of witnesses. He further states that the previous counsel who was conducting the matter on behalf of the plaintiff, i.e., Ms. Divya Jain, Advocate had left their firm and Ms. Priyanka Gupta, Advocate was assigned the brief and she had filed the list of witnesses only a day before the date that was fixed before the Joint Registrar for examination-in chief of the plaintiffs witnesses.

Counsel for the plaintiff further states that irreparable loss and injury shall be caused to the plaintiff if the list of witnesses filed on his behalf is not taken on record as in the absence of any further witnesses, the plaintiff would not be able to prove the issues framed on 6.10.2009. He further states that the plaintiff has mentioned only three witnesses in the list of witnesses, out of whom, two witnesses are part-C witnesses whereas one witness is a part-D witness and that he shall not take more than two days for recording the evidence of the remaining witnesses, if so permitted by the Court.

The manner in which the plaintiff has been prosecuting the suit right from 6.10.2009, the date when the issues were framed, till the date when the impugned order dated 05.08.2011 came to be passed, has been set out above. The same reveals that the plaintiff has certainly not been diligent in pursuing his suit. The submission made by the counsel for the plaintiff that the parties were trying to negotiate a settlement from 06.10.2009 onwards till the evidence of the plaintiff was closed, is not borne out from the record. Reliance placed by the counsel for the plaintiff on the submission made by the defendant on 13.1.2009 or even on the subsequent orders by which the parties were referred to mediation cannot wash away the failure on the part of the plaintiff to take necessary steps to file the list of witnesses for the purposes of taking the case to trial.

However, in the interest of justice, the list of witnesses filed by the plaintiff belatedly is permitted to be taken on record and the order dated 05.08.2011 insofar as it has ordered closing of plaintiffs evidence, is set aside, subject to payment of '' 40,000/- as costs to the other side within two weeks. It is however made clear that failure on the part of the plaintiff to pay the costs within the prescribed period shall automatically result in the revival of the order dated 05.08.2011. The appeal is disposed of.