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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 14^th February 2025 + CM(M) 244/2024 URMILA GUPTA .....Petitioner Through: Mr. Rajat Vadehra, Adv.

versus PUNAM HARIT & ORS. .....Respondents Through:

CORAM:

HON'BLE MR. JUSTICE RAVINDER DUDEJA J U D G M E N T ( ORAL)

RAVINDER DUDEJA, J.

1. This is a petition under Article 227 of the Constitution of India for setting aside the order dated 06.10.2023, passed by the learned District judge, Rohini Courts in CS No. 954/2017, titled “Punam Harit Vs. Devender Yadav & Ors.”, whereby, the trial court dismissed the application under Order 18 Rule 17 read with Section 151 CPC for recall of PW-1 for the purpose of further cross-examination.

2. Bearing in mind the limited nature of controversy in the present case, it is not necessary to advert to the detailed averments in the suit. Suffice to say that respondent No. 1 filed a Suit for Declaration to the effect that the documents of title in respect of immovable property, executed by respondent No. 1 in favour of the petitioner, be declared as illegal, invalid, non-est and void abinitio. Respondent No.1 also sought possession and recovery of rent and mesne profits against Signature Not Verified Digitally Signed CM(M) 244/2024 Page 1 of 10 respondents No. 2 & 3.

3. On 09.02.2023, during the cross examination of PW-1, the learned counsel of petitioner confronted the witness with a document and sought confirmation of his signatures on the said document but the same was objected to by the learned counsel of respondents on the ground that such question cannot be put without describing the nature of the document. Both sides submitted that they would produce the case law, and therefore, the cross-examination was deferred.

4. On 15.09.2023, recalled PW-1 was cross examined by the learned counsel for the petitioner and was discharged. The order dated

15.09.2023 reads as under:-

“15.09.2023 Present: Sh S Chaturvedi, Id counsel for the plaintiff Sh Sanjay Dalal, Id counsel forD-1 and D-2.

Sh Rajesh Hamal, ld counsel for D-3, PW1/plaintiff cross-examined and discharged today. Put up the case for remaining PE for which steps be taken by ld counsel for the plaintiff to summon the witness on filing of PF and dietmoney be paid on the spot, for

24.01.2024.”

5. Learned counsel for the petitioner submits that the counsel of petitioner carried out the cross examination of PW-1 for over an hour and left for Patiala House Court in the bona fide belief that cross examination of PW-1 has been deferred. Later that day, he came to know of the closure of cross examination of PW-1.Petitioner then filed an application under Order 18 Rule 17 read with Section 151 CPC for recall of PW-1 for further cross examination. However, the said application came be dismissed vide order dated 06.10.2023, which reads as under:-

Signature Not Verified Digitally Signed CM(M) 244/2024 Page 2 of 10 “1. Vide this order, application dated 16.09.2023 filed on behalf of defendant no.3 u/o XVIII Rule 17 CPC r/w 151 CPC for recalling plaintiff/ PWI for conducting further / remaining cross-

examination, shall stand decided.

2. No reply to the present application has been filed by and on behalf of the plaintiff. However, Id. Counsel for the plaintiff has argued on the same at length.

3. I have heard Id. Counsel for defendant no.3, Id. Counsel - for plaintiff and have carefully gone through the record.

4. In the application in hand, Id. Counsel for defendant no.3 has cast certain aspersions towards the conduct of the Court as mentioned in para no.6, 7, 8 &9 of the application. However, the facts as stated in these paragraphs of the application, are absolutely incorrect since the ordersheet dated 15.09.2023 had been dictated in the presence of Id. Counsel for defendant no.3 wherein it is specifically dictated and noted down that “PW1/plaintiff cross examined and discharged today". Therefore, it does not lie in the mouth ofld. Counsel for defendant no.3 to say that he was under the impression that cross