The court emphasized the importance of avoiding endless cross-examination and enforced the rules for recording evidence of outstation witnesses.

Prathiba M. Singh, J.

I.A. 5611/2018 (delay)

1. Delay in filing the OA is condoned. I.A. is disposed of.

O.A. 45/2018

2. The chronology of events in this case highlights the malaise of repeated adjournments in recordal of oral evidence, especially in case of outstation & old witnesses who have to make travel arrangements and repeatedly appear before the Court for their cross examination.

3. The present appeal has been filed challenging the order dated 12th February, 2018, by which the Joint Registrar has closed the evidence on behalf of the Defendants. In the appeal the prayer is for permission to recall the order of the Joint Registrar and permit the cross examination to be completed.

4. The brief background of the present case is that the Plaintiffs had entered into an agreement to sell with the Defendant No.2’ s father, Mr. J. N. Sahni on 4th February, 2007, read with supplementary agreement dated 12th April, 2007. As per the said agreement, the total sale consideration for the suit property bearing No.59, Ring Road, Lajpat Nagar-III, New Delhi admeasuring 790 square yards was Rs.17,00,00,000/-. According to the learned counsel for the Plaintiffs a sum of Rs.4 Crore has been paid as part sale consideration. The present suit for specific performance has been filed seeking specific performance of the said agreement.

5. The Plaintiffs have already led evidence in the suit. Defendant No.1 had made a statement on 15th February, 2016 that she did not wish to lead evidence. Accordingly, Defendant No.2 – Shri Ajay Sahni, was directed to lead evidence, subject to costs, with the clear condition that he would not get more than two opportunities to lead evidence and that if Defendant No.2 did not lead evidence on two occasions, the evidence of Defendant No.2 would be deemed to be closed. Order dated 15th February, 2016 is extracted herein below:-

“1. Counsel for defendant no. 1 states that defendant no. 1 does not want to lead evidence. With consent of the parties, the order of the Joint Registrar dated 18.11.2015 is recalled qua defendant no.2 subject to three conditions. First condition is that defendant no.2 will pay a sum of Rs.25,000/- as costs to the counsel for the plaintiffs before the next date of hearing. The second condition is that defendant no.2 will not get more than two opportunities to lead evidence and if the defendant no.2 does not lead evidence in two opportunities, the evidence of the defendant no.2 will be deemed to be closed. The third condition is that defendant no.2 will positively file affidavits by way of evidence of his witnesses, who have not to be summoned, within a period of four weeks from today, failing which right to file affidavits by way of evidence will be deemed to be closed. ………………..”

6. On 29th April, 2016, the costs were paid. Defendant No.2 had filed the list of witnesses and affidavits of evidence on 14th March, 2016. Copies of the same were supplied and the matter was listed on 16th and 19th August, 2018 for the Defendants’ evidence. However, on 16th August, 2016, Defendant No.2 did not appear before the Court on the ground of illness. Thereafter i.e., from 29th September, 2016, Defendant No.2 had appeared on all occasions except on 12th February, 2018. On two occasions, the cross examination was recorded. The order dated 15th February, 2016 is categorical that only two opportunities would be given to Defendant No.2 to lead evidence. Clearly, Defendant No.2 was present before the Court on 29th September, 2016, 1st December, 2016, 27th January, 2017, 13th April, 2017, 25th July, 2017 and 10th October, 2017. Out of these occasions, the Defendant No.2 was cross examined on only two occasions. It is seen from the record that adjournments have been taken only because of inconvenience of either of the counsels in this matter. The defendant no.2 finally did not appear on 12th February 2018 due to ill-health and his evidence was then closed by the Joint Registrar on 12th February 2018. The appeal ag