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2023 Supreme(Del) 5856
IN THE HIGH COURT OF DELHI AT NEW DELHI
Manmeet Pritam Singh Arora, J.
Sanjay Rathi - Appellant
Versus
Devender Kumar & Ors. - Respondents
CM(M) 1419 of 2023
Decided On : 22-09-2023
Mr. Vikram Dua and Mr. Vinod Kumar Shukla, Advocates, for the Petitioner.
Mr. Akash Sethi, Advocate, for the Respondent-1. 2 and 3.
IMPORTANT POINT
The court clarified the issue of lack of privity of contract and upheld the principles of fair trial and due process by setting aside the order that closed the right of the defendants to cross-examine the plaintiff's witness.
Headnote:
specific performance - civil suit - Order XVII CPC - Article 227 - CS No. 77713/2016 - [Order XVII CPC] - The court clarified that the issue of lack of privity of contract between the plaintiff and late Smt. Gindori Rathi will be decided at the time of final arguments after perusing the evidence lead by the parties. The order dated 21.07.2023 was set aside, and the defendants were granted an opportunity to cross-examine plaintiff's witnesses.
Fact of the Case:
The petition filed under Article 227 of the Constitution of India impugns the orders passed by the Trial Court in CS No. 77713/2016, related to a civil suit for specific performance of an agreement dated 24.02.2006.
Finding of the Court:
The court clarified the issue of lack of privity of contract and set aside the order dated 21.07.2023, granting the defendants an opportunity to cross-examine plaintiff's witnesses.
Issues: The issues included the modification of issues and framing of an additional issue, lack of privity of contract, and the right of the defendants to cross-examine the plaintiff's witness.
Ratio Decidendi: The court clarified that the issue of lack of privity of contract will be decided at the time of final arguments after perusing the evidence lead by the parties. The order dated 21.07.2023 was set aside, and the defendants were granted an opportunity to cross-examine plaintiff's witnesses.
Final Decision: The present petition along with the pending application stands disposed of.
JUDGMENT
Manmeet Pritam Singh Arora, J. (Oral)
CM APPL. 45156/2023(stay)
1. This petition filed under Article 227 of the Constitution of India impugns the order dated 18.05.2023 and 21.07.2023 passed by ADJ, North-West, Rohini Courts, Delhi (`Trial Court') in CS No. 77713/2016, titiled as Devender Kumar v. Sanjay Rathi.
1.1. The Trial Court vide order dated 18.05.2023 dismissed an application filed by the Petitioner herein for modification of issues and framing of an additional issue.
1.2. The Trial Court vide order dated 21.07.2023 closed the right of the defendant to cross examine the plaintiff witness-1 (`PW-1') and set the matter down for final arguments. No opportunity was granted to the defendants to lead their evidence.
1.3. The Petitioner herein is defendant no. 1 and Respondent No. 1 is the plaintiff.
1.4. Respondent Nos. 2 and 3 are the newly impleaded defendant nos. 2 and 3.
2. The civil suit has been filed for specific performance of agreement dated 24.02.2006 against defendant no.1 and late Smt. Gindori Rathi.
2.1. In the civil suit, late Smt. Gindori Rathi was arrayed as defendant no.2. Upon her death, she was survived by her legal heirs being her two (2) daughters and her son. Since, the son (i.e., the Petitioner herein) was already a party to the suit as defendant no.1 and right to sue survived upon the daughters as well, therefore, both the daughters were impleaded as defendant nos. 2 and 3 to the suit.
3. The learned counsel for Respondent No. 1 has entered appearance. The Respondent Nos. 2 and 3 have joined through video conferencing.
4. With respect to the impugned order dated 18.05.2023, learned counsel for the Petitioner states that he is aggrieved by the non-framing of a separate and a distinct issue, as regards the defence raised in the written statement that there is no privity of contract between the plaintiff and late Smt. Gindori Rathi.
4.1. He further states that the Trial Court vide order dated 18.05.2023 while dismissing the application has returned a finding on the issue of privity of contract at paragraph `9', which would amount to determination of the said issue at this stage even before the evidence of parties has been recorded.
5. In reply, learned counsel for the Respondent No.1 states that no separate issue on privity of contract is required to be framed and he states that the issues as were framed on 25.02.2010 sufficiently cover the issue of privity of contract.
5.1. He further states that he has no objection if it is clarified that the finding of the Trial Court at paragraph `9' of the impugned order dated 18.05.2023 will not operate as an issue estopple and at the time of the final arguments, the issue of privity of contract will be decided by the Court without being influenced by the order dated 18.05.2023.
6. This Court has considered the submissions of the parties and perused the record.
Impugned order dated 18.05.2023
7. The issue of lack of privity of contract between the plaintiff and late Smt. Gindori Rathi is covered by issue No. `d' as framed in order dated 25.02.2010, which reads as under:
"(d) Whether the plaintiff is entitled to a decree of specific performance of the agreement dated 24.02.2006, if so, to what effect? OPP"
7.1. In the opinion of this Court, while deciding the said issue No. `d', the plaintiff will have to satisfy the Court that he had a privity of contract with late Smt. Gindori Rathi.
7.2. This Court is also in agreement with the submissions of the Petitioner that no finding on the said issue of privity can be returned at this stage of the proceedings before the evidence has been recorded, since parties are still in the midst of leading evidence.
7.3. Accordingly, with the consent of the parties, it is clarified that observations made by the Trial Court at paragraph `9' of the impugned order dated 18.05.2023 is not conclusive and the issue of privity of contract between the plaintiff and late Smt. Gindori Rathi will be decided at the time of final arguments after perusing the
