Rakesh Sehgal and Others vs Meenakashi Gupta

Indermeet Kaur, J.—The impugned order is dated 21.09.2010 which had endorsed the finding of the trial Judge dated 20.04.2010 whereby the two applications filed by the tenant had been dismissed. One application was an application filed u/s 151 of the CPC (hereinafter referred to as the ''Code''); that part of the order is not impugned. The second application is an application under Order XVIII Rule 17 of the Code; the finding returned on this application has aggrieved the petitioner. The contention of the petitioner is that his evidence was illegally closed by the trial Court; he should have been granted an opportunity to lead his evidence but his application under Order XVIII Rule 17 of the Code was dismissed summarily.

Record shows that the present suit is the eviction proceedings filed by the landlord against his tenant u/s 14 (1)(e) of the Delhi Rent Control Act (DRCA). It is not in dispute that in the course of the evidence, the tenant has examined about ten witnesses. By way of the application under Order XVIII Rule 17 of the Code, the tenant seeks to examine one Naresh Kumar Sehgal. Record shows that on 16.07.2007, last opportunity had been granted to the tenant to examine all his witnesses failing which his evidence would be closed and the matter had thereafter been fixed for 14.08.2007. On 14.08.2007, after the examination of the part of the witnesses of the tenant, the evidence of the tenant stood closed. Matter was fixed for final arguments for 31.10.2007. Thereafter an application was filed by the tenant seeking a recall of the order vide which his evidence had been closed; this prayer made by the tenant had been declined and had been dismissed on 28.01.2008; the order of 28.01.2008 as also the earlier order dated 14.08.2007 whereby the evidence of the tenant stood closed have since attained a finality. Naresh Kumar Sehgal was not present on that date and as such he was not examined; there was no explanation as to why the evidence of the tenant should again be reopened with permission to the tenant to summon Naresh Kumar Sehgal once again; moreover, the relevancy of the testimony of Naresh Kumar Sehgal even on a specific query put to the learned counsel for the petitioner is unexplained.

Record shows that the evidence of the tenant had in fact stood already closed on 14.08.2007 and the application seeking a recall of that order had again been dismissed on 28.01.2008. No explanation could be furnished by the tenant as to why Naresh Kumar Sehgal had not been produced on the earlier dates; the impression that the Court gets in such proceedings is that the tenant is doing his best to delay the proceedings; since this impression built up could not be repelled by the tenant, the impugned order declining the prayer made by the petitioner for recall of his witness in this scenario suffers from an infirmity.

Order XVIII Rule 17 of the Code empowers the Court to recall a witness at any stage; there is a wide and ample power which is vested with the Court; however this power has to be exercised in the interest of justice and not allowing one party to fill up the gaps or lacunas which have been left out by them or for the purpose of delaying the proceedings. Petition is without any merit. Dismissed.