Dharamveer Bhardwaj vs Subhash Sharma

Valmiki J. Mehta, J.�This petition under Article 227 of the Constitution of India is filed by the defendant/tenant impugning the order of the trial court dated 20.11.2014 by which the trial court has closed the evidence of the petitioner/defendant not only on account of the nonpayment of the cost imposed, but also because the advance copy of the affidavit by way of evidence which was directed to be served upon the respondent/plaintiff, was not served. Those tenanted premises are not covered under the Delhi Rent Control Act, 1958 whose rate of rent is more than Rs. 3,500/- per month, and as is the case of the respondent/plaintiff in the subject suit. It is not unknown and in fact it is quite common that a petitioner/defendant/tenant uses all tactics to delay the suit for possession thus causing prejudice to the respondent/plaintiff/landlord.

In the present case, first opportunity for leading evidence was given to the petitioner/defendant on 07.10.2014, but it was not availed of. Therefore, while granting adjournment on 07.10.2014, the trial court imposed costs and also made it clear that advance copy of the affidavit by way of evidence will be supplied to the respondent/plaintiff 10 days before the next date of hearing so that the respondent''s/plaintiffs counsel knows what is stated in the affidavit by way of evidence filed by the petitioner/defendant so that necessary cross-examination is done on the next date fixed ie 20.10.2014.

The order dated 07.10.2014 reads as under:--

"S. No. 333/13

07.10.2014

Present: Counsel for the plaintiff with plaintiff in person.

Defendant in person.

Defendant seeks adjournment as his counsel is not available.

No cogent ground has been mentioned for seeking adjournment. Moreover, no evidence affidavit has been filed on behalf of defendant. However taking a lenient view, adjournment is granted subject to payment of cost of Rs. 1500/- to be paid by defendant to the plaintiff.

It is made clear that defendant is to supply advance copy of evidence affidavit to the plaintiff 10 days prior to the next date of hearing.

Put up for DE on 20.10.2014.

(Naveen Gupta)

JSCC/ASCJ/GJ (North West),

Rohini Court, Delhi/07.10.2014"

Once again on 20.10.2014, no evidence was led by the petitioner/defendant, and therefore subject to costs of Rs. 2,500/- and in the interest of the justice, one another opportunity was granted to the petitioner/defendant to file affidavit by way of evidence and the suit was fixed for 20.11.2014 for cross-examination of the petitioner''s/defendant''s witnesses.

The impugned order passed on 20.11.2014 closed the right of the petitioner/defendant to lead evidence, and which order reads as under:--

"S. No. 333/13

20.11.2014

Present: Counsel for the plaintiff.

Counsel for defendant with defendant in person.

Counsel for defendant has appeared before the Court at 1:00 PM after several pass overs having been sought by defendant for his appearance.

Counsel for defendant has filed evidence affidavit and an application under Section 151 CPC for appointment of handwriting and finger prints expert.

Counsel for the plaintiff submits that neither defendant has furnished advance copy of the affidavit nor he has paid cost imposed upon him on the last date of hearing. Since advance copy of evidence affidavit had not been supplied, she is unable to cross-examine the witness. She has further submitted that the defendant had already been permitted to engage a handwriting expert on 20.10.2014, but he did not take steps for appointment of handwriting expert prior to today''s date of hearing.

After perusal of record, the Court is in agreement with the submission made by counsel for the plaintiff. By not supplying the advance copy of the evidence affidavit, defendant is virtually seeking an adjournment.

Perusal of record reveals that matter had been earlier listed for leading defence evidence on 07.10.2014 and 20.10.2014, but the defendant did not lead any evidence on those dates. Further, previous cost of Rs. 2500/- is also not paid by defendant In view of mandate of Section 35B CPC, defence of the defendant shall be struck off for non-payment of the cost. In these circumstances, defence evidence of the defendant is closed.

Further, since the defence evidence has been closed by the Court, the application under Section 151 CPC filed today becomes infructuous. Even otherwise, the defendant had already been permitted to engage a handwriting expert vide order dated 20.10.2014 and he must have taken appropriate measures in advance for appointment of a handwriting expert, but he preferred not to take such steps just to delay further proceedings of the present case.

Put up for final arguments on 09.12.2014.

(Naveen Gupta)

JSCC/ASCJ/GJ (North West),

Rohini Courts, Delhi/20.11.2014"

From the aforesaid facts, it is clear that the petitioner/defendant is malafidely delaying the suit for possession filed against the petitioner/defendant, and inspite of opportunities granted in the interest of justice and on payment of costs, the opportunities given for leading evidence were not utilized, and in fact cost imposed was also not paid. In fact deliberately, the advance copy of the affidavit by way of evidence was not supplied to the respondent/plaintiff so that no cross-examination can take place and which would result in an adjournment on 20.11.2014.

In view of the facts of this case as stated above, I do not find any reason whatsoever to interfere with the impugned order because certain sections of litigants keep on playing games of hide and seek with the judicial process. In the facts of the present case, I do not find any reason to exercise my discretion under Article 227 of the Constitution of India. Dismissed.