Engaging a new counsel cannot be a ground for reopening evidence and filling up lacunae in the case.

JUDGMENT

Amit Bansal, J. - CM No.40408/2021(for exemption)

1. Allowed subject to all just exceptions.

2. The application is disposed of.

CM(M) 1017/2021

3. The present petition under Article 227 of the Constitution of India impugns the order dated 12th October, 2021 passed by the Court of Civil Judge, Tis Hazari Courts, New Delhi in CS No.597006/2016, whereby the application filed on behalf of the petitioners/plaintiffs under Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (CPC) for seeking re-opening and recalling/calling of the witnesses on behalf of the petitioners has been dismissed.

4. It is deemed apposite to give a brief rsum of facts preceding the filing of the present petition. The petitioners/plaintiffs in the present case had filed a suit for possession against the respondent/defendant before the Trial Court, in respect of property bearing No. 39/33, 100 Feet Road, Guru Nanak Gali, comprised in Mustatil No. 137, Kila No. 14/2, Village Burari, Delhi. Plaintiffs evidence began on 3rd October, 2007 and continued for 10 years therefrom, during which time the Local Commissioner appointed in another suit between the parties herein, being Suit No. 340/2005, was examined and cross examined on 6th September, 2017. Thereafter, defence evidence was concluded on 4th October, 2018 and the application filed by the petitioners/plaintiffs for leading rebuttal evidence was dismissed by the Trial Court. On 1st October, 2021, the petitioners/plaintiffs engaged a new counsel. Subsequently, matter was taken up for final arguments on 6th October, 2021 and matter was adjourned to 7th October, 2021 for further arguments. On 7th October, 2021 itself, the petitioners/plaintiffs filed the application under Order XVIII Rule 17 of the CPC, which was dismissed vide the impugned order dated 12th October, 2021.

5. The Trial Court has, in the impugned order, observed that (i) the application under Order XVIII Rule 17 of the CPC has been filed on 7th October, 2021, at the stage of final arguments; (ii) the only ground taken for recalling/calling of the witnesses is that of inadvertence of the previous counsel of the plaintiff and not new facts coming to the knowledge of the plaintiff; (iii) the Local Commissioner sought to be recalled has been examined and cross-examined and no reasons have been given for his recall in the application under Order XVIII Rule 17 of the CPC; (iv) the remaining witnesses named in the application, barring the plaintiff no.2, were mentioned in the list of witnesses filed by the plaintiff no.1 on 8th January, 2007 and yet, none of them were called for evidence, signifying that it was a conscious choice made by the party to not do so; (v) the plaintiff no.2 ought to have been examined first and can not be expected to give evidence at the stage of final arguments, on an application filed by the other plaintiff; (vi) even at the stage of rebuttal evidence, the plaintiff(s) did not make an attempt to reopen evidence and examine the witnesses listed in the application under Order XVIII Rule 17 of the CPC; and, (vii) the plaintiff was afforded sufficient time and opportunities to lead evidence.

6. Mr. Sachin Dutta, senior counsel appearing on behalf of the petitioners states that the application under Order XVIII Rule 17 of the CPC had to be filed on account of the inadvertence of the earlier counsels engaged by the petitioners. Four of the said witnesses were part of the list of witnesses submitted by the petitioners and yet, they were not examined by the previous counsels. He submits that these are vital witnesses whose evidence is required for fair adjudication of the case.

7. Mr. Sundeep Srivastava, counsel appearing on behalf of the respondent states that petitioners/plaintiffs evidence in the present case started in 2006 and was concluded only in the year 2016. He states that on a previous occasion, the petitioners/plaintiffs had filed an application for leading rebuttal evidence, which was dismissed on 13th March, 2019 an