Sharif Husain vs Karan Singh And Others

This petition under Article 227 of the Constitution of India has been filed seeking the following reliefs:-

"i) That, the order annexure P-1 passed by the learned trial court be set aside the application filed by the plaintiff be allow and call the witness by issuing the summons or issue the commission for recording his statement, in the interest of justice.

ii) That, the other relief doing justice including cost be awarded."

It is submitted by the counsel for the petitioner that the petitioner had filed an application under Order XVI Rule 1 read with Order XXVI Rule 3 CPC, which has been rejected by the trial court by order dated 7/9/2019. It is submitted by the counsel for the petitioner that the petitioner wanted to examine an important witness and accordingly, an application under Order XVI Rule 1 CPC was filed, however, the same has been wrongly rejected by the trial court.

Heard learned counsel for the petitioner.

It appears that the petitioner has filed a suit for specific performance of contract and permanent injunction. Earlier the petitioner had filed an application under Order XXXIX Rule 1 and 2 CPC and on 16/8/2017 the said application was withdrawn by the petitioner and accordingly, the case was fixed for 30/8/2017 for plaintiff's evidence. Thereafter, on 30/8/2017, 25/9/2017 the plaintiff's witness did not appear. On 21/11/2017 the affidavit of one Sharif Husain was filed under Order XVIII Rule 4 CPC and the case was fixed for 12/12/2017. On 12/12/2017 the case was fixed for 5/1/2018. On 5/1/2018 the case was adjourned for keeping the plaintiff's witness Sharif Husain present before the Court for cross examination on 17/1/2018. On 17/1/2018 the application under Section 35-36 of Stamps Act was filed by the defendants which was dismissed by the trial court by order dated 18/1/2018 and accordingly, the plaintiff was directed to keep his witness present before the trial court on 30/1/2018. Although on the said date the plaintiff's witness Sharif Husain was present, but at the request of the counsel for the defendants the case was adjourned to 16/2/2018. Thereafter, from 16/2/2018 till 18/7/2018 the case was adjourned on the ground that there is a possibility of compromise. Thereafter, on 10/8/2018 the case was adjourned for recording the evidence of plaintiff's witness. On 5/10/2018 Sharif Husain was cross examined. On 2/11/2018 and 19/11/2018 the case was adjourned for examination of the plaintiff's witness. However, on 19/11/2018 it was made clear by the trial court that for the last time the case is being adjourned, otherwise his right would be closed. On 6/12/2018 the plaintiff's witness were absent and accordingly, right of the petitioner to examine his witness was closed, which was challenged by the petitioner by filing a petition before this Court, which was registered as M.P. No.1230/2019. The said petition was finally disposed of by order dated 8/3/2019 with a clear stipulation that "the trial Court is directed to fix a date for allowing the petitioner to lead evidence by way of last opportunity. It is made clear that no further adjournment shall be granted to the petitioner to lead evidence in case of any default". Thereafter, it appears that the petitioner filed an application under Order XVI Rule 1 CPC for summoning the Document Writer. Since the petitioner has not complied with the order of the High Court passed in Writ Petition No.1230/2019, therefore, the application has been rejected. It is submitted by the counsel for the petitioner that the Document Writer is an important witness. Once an opportunity has been granted to the petitioner, then he is well within his right to move an application under Order XVI Rule 1.

Heard learned counsel for the petitioner.

Prior to the closure of his right to examine his witness, no application was ever filed by the petitioner under Order XVI Rule 1 of CPC for summoning the Document Writer. Only after the right of the petitioner to examine the witness was closed and one opportunity was granted by this Court, then the petitioner has come with an innovative idea of further delaying the trial by filing an application under Order XVI Rule 1 CPC. Thus, it is clear that the application was not filed out of bonafides, but it was filed not only contrary to the directions given by this Court, but it was filed with an intention to further delay the proceedings. Under these circumstances, this Court is of the considered opinion that no mistake has been committed by the trial court by rejecting the application.

Hence, this petition fails and is hereby dismissed.