The main legal point established is that repeated failure to avail opportunities to file evidence and lack of justification for delay may demonstrate an intent to delay the suit, leading to dismissal of the petition.

JUDGMENT

Navin Chawla, J. - This petition has been heard through video conferencing.

1. This petition has been filed by the petitioner challenging the orders dated 05.11.2020 and 06.02.2021 passed by the learned Additional District Judge-03, Patiala House Courts, New Delhi in Suit, being CS No. 839/2017, filed by the respondent no. 1 herein.

2. The Suit has been filed by the respondent no. 1 inter alia praying for a relief of declaration, mandatory and permanent injunction in respect of shop No. 45-A, Ground Floor, Khan Market, New Delhi, claiming the petitioner herein to be a licensee in the said shop.

3. The petitioner, on the other hand, filed his Written Statement denying such claim of the respondent.

4. Issues in the Suit were framed on 09.10.2018 and the parties were directed to file their list of witnesses within two weeks. A Local Commissioner was also appointed for recording of the evidence of the parties. The respondent no. 1 led his evidence and the same was closed on 21.12.2019. By the said order, the petitioner's evidence was also directed to be recorded before the Local Commissioner for which purpose the parties were to appear before the Local Commissioner and the Suit was listed for further hearing on 01.04.2020.

5. On 26.02.2020, on an application of the respondent no. 1, petitioner's evidence was closed on the submission of the respondent no. 1 that despite repeated opportunities, the petitioner had not been approaching the Local Commissioner for fixing the date for recording his evidence.

6. The above order dated 26.02.2020 was recalled by the learned Trial Court vide its order dated 20.08.2020, on the concession given by the respondent no. 1. The petitioner was directed to file the affidavit of "all the four witnesses" within four weeks of the said order. The learned counsels for the parties submit that though there was no list of witnesses filed by the petitioner, orally it was submitted that the petitioner was to examine only four witnesses whose affidavit were to be filed within four weeks as directed by the learned Trial Court.

7. The learned Trial Court further directed that the evidence of all the witnesses of the petitioner, except that of Shri Rajinder Lal Arora shall be recorded by the same Local Commissioner "positively before the next date of hearing."

8. The petitioner never filed the affidavits of his witnesses nor filed any application seeking enlargement of time for the said purpose before the learned Trial Court. On 05.11.2020, the learned Trial Court granted one last and final opportunity to the petitioner to lead his evidence, subject to payment of cost. It was made clear that in case evidence is not led and cost is not paid by the petitioner, the right of the petitioner to lead evidence shall stand automatically closed. This order, though not earlier challenged by the petitioner, has now been challenged in the present petition.

9. Inspite of the above preemptory order, the petitioner did not file the affidavits of his witnesses within the time granted. It is only on 25.01.2021 that the petitioner filed the affidavit of evidence and list of witnesses alongwith three applications before the learned Trial Court. The first being an application for taking the evidence and list of witnesses on record; the second being under Order VIII Rule 1A of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code') seeking permission to place additional documents on record; and the third being under Section 151 of the Code seeking waiver of the cost.

10. As far as the delay in filing of the affidavit of evidence and the list of witnesses, the petitioner, in his application, pleaded as under:-

"5. That due to the bereavement in the family, the Defendant(s) couldn't approach their counsel for the purpose of preparation of their evidence and therefore, the present delay has occurred.

6. It is a case involving family members, therefore, all attempt was made to maintain family harmony.

7. Furthermore, in the