The court upheld that misrepresentation and deliberate absence in judicial proceedings constitute an abuse of process, justifying dismissal of claims.

JUDGMENT (Oral)

1. This petition under Article 227 of the Constitution of India, assails an order dated 17th May, 2022, passed by the learned Rent Controller ("the learned RC"), whereby an application, moved by the petitioner under Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (CPC) in RC/ARC 5342/2016 (Mohd. Mange Khan v. Siraj Khan) was dismissed. The petitioner was the respondent before the learned RC.

2. Given the limited nature of the controversy, we need not burden ourselves with the dispute between the parties. For the purposes of the present order, suffice it to state that, on 21st August, 2019, the evidence of the fourth witness of the respondent (the petitioner before the learned RC), PW-4 Yaseen, was recorded. Despite grant of opportunity, he was not cross-examined by the petitioner. The record of proceedings on 21st August, 2019 reads thus:

"PW4.

Statement of Yaseen s/o Late Sh. Lal Khan aged about 65 years r/o 240-B, 20 Foota Road. Prem Nagar, Loni. Ghaziabad, U.P.

On SA

I tender my an evidence by way of an affidavit and the same is exhibited as Ex. PW4/A which bears my signature at point A and at point B. I rely upon the following document:

(a) a photocopy of my election identity card is exhibited as Ex. PW4/A (OSR).

XXXXXXXX by Shri Deep Singh proxy counsel for plaintiff.

Nil. Opportunity given.

RO&AC

Sd.

NIYAY BINDU

SCJ-cum-RC NORTH WEST

ROHINI COURTS

DELHI

21/08/2019"

3. Thereafter, the suit proceeded, the petitioner's witnesses were examined and cross-examined and the matter was finally heard. It was reserved for orders, to be pronounced at 4:00 PM on 17th May, 2022.

4. At 12:10 PM on the date when the judgment was to be pronounced, the petitioner moved an application under Order XVIII Rule 17 of the CPC, seeking recall of PW-4 Yaseen-whose evidence, as noted hereinabove, was closed on 21st August, 2019, after grant of opportunity to cross-examine him, which was not availed.

5. Having moved the application, the petitioner chose to remain absent when the application was taken up by the learned RC at 4:05 PM. The impugned order notes that the application was taken up at 4:05 PM and that, despite repeated calls, no one appeared to pursue the application.

6. In these circumstances, the learned RC dismissed the application as a deliberate attempt to delay the proceedings, with costs of Rs.4,000/-.

7. The present petitioner under Article 227 of the Constitution of India seeks to call, into question, this decision of the learned RC.

8. The petitioner has, in the petition, admitted the fact that the evidence of PW-4 was closed on 21st August, 2019. This candour is, however, sadly lacking in the manner in which para 5 of the petition refers to the proceedings of 21st August, 2019 which appears, prima facie, to be a deliberate attempt to misrepresent what happened that day.

"5. That however when the matter came back to trial court from mediation, the petitioner produced PW-4 when the counsel was not present and Nil opportunity was given to the respondent vide order dated 21.08.2019."

(Emphasis Supplied)

9. The assertion, in para 5 of the petition, that "Nil opportunity was given" to the respondent on 21st October, 2019 is a deliberate misrepresentation of the proceedings which took place on the said date. A reading of the order reveals that what is stated, therein, is "Nil. Opportunity given." This indicates that, despite grant of opportunity, the petitioner did not choose to cross-examine PW-4 and not that no opportunity was granted to cross-examine the said witness. This Court depreca