CM(M) 616/2022

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$~53(Appellate)

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CM (M) 616/2022 & CM No. 29053/2022

SMT. SHASHI SEHDEV

..... Petitioner

Through:

Mr.Pradeep Kumar, Adv.

versus

SH. NARENDER KUMAR SHARMA

..... Respondent

Through:

None

CORAM:

HON’BLE MR. JUSTICE C.HARI SHANKAR

J U D G M E N T(O R A L)

%

06.07.2022

1.

This petition under Article 227 of the Constitution of India

assails order dated 18^th November 2019 passed by the learned

Additional District Judge (“the learned ADJ”), rejecting an application

under Order XVIII Rule 17 of the Code of Civil Procedure

(hereinafter referred to as “CPC”) filed by the petitioner (the

defendant before the learned ADJ) in CS 576816/16 (Narender

Kumar Sharma v. Shashi Sehdev).

2.

CS 576816/16 was preferred by the respondent against the

petitioner seeking specific performance of an agreement to sell dated

8^th January 2013. Among the averments in the plaint was the

averment that the respondent had completed part performance of the

agreement to sell and that the petitioner was exhibiting recalcitrance in

complying with her part of the deal. The respondent, as the plaintiff in

the suit, examined himself as PW-1 and one Raj Rani Sharma as PW-

2. The petitioner, as the defendant in the suit, cross examined the

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002519

CM(M) 616/2022

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respondent and PW-2 Raj Rani Sharma.

3.

Admittedly, the recording of evidence of PW-1 was concluded

on 13^th October 2016 and the recording of evidence of PW-2 Raj Rani

Sharma was concluded on 6^th March 2017.

4.

Thereafter, the respondent chose to change her Counsel. The

Counsel newly engaged in the matter filed application under Order

XVIII Rule 17 CPC which has come to be dismissed by the impugned

order dated 18^th November 2019. Paras 4 to 7 of the application,

which set out the justification for seeking recall of PW-2 for further

cross examination, read thus:

“4.

That at the time of adducing the evidence, the plaintiff

examined himself and Smt. Raj Rani Sharma also examined

on behalf of the plaintiff. The Counsel for the defendant

cross-examined of both the above said witnesses, but the

Counsel for the defendant due to the oversight/inadvertence

could not cross-examine the veracity of the part performance

done and as allegedly performed by the plaintiff on his behalf.

It is also pertinent to mention here that the Counsel for the

defendant also failed to cross-examined the PW-1 & PW-2 on

the facts with respect to the alleged payment made to the

defendant and in which circumstances the alleged Agreement

dated 08.01.2013 was executed.

5.

That the Counsel for the defendant could not cross-

examined the PW-1 & PW-2 on the abovesaid aspects and if

the witnesses would not be cross-examined on these two

aspects then these facts will be treated the admission on the

part of the defendant.

6.

That this fact came to the knowledge of the Counsel

for the defendant recently and the cross-examination of the

PW-1 & PW-2 is very necessary on the abovesaid aspects and

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002519

CM(M) 616/2022

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therefore, it is necessary to call the witnesses PW-1 & PW-2

for further cross-examination by this Hon'ble Court is very

necessary.

7.

That the defendant is having a very valuable right in

the present suit and if the Hon' ble Court shall not grant the

opportunity to the defendant to cross-examine the PW-1 &

PW-2 on the abovesaid aspects then the defendant shall suffer

an irreparable loss and injury, which cannot be compensated

in terms of time and money and it is further submitted that if

the Hon'ble Court allows the present application then no

prejudice shall be caused to the plaintiff in any manner.

Rather it will be helpful in properly adjudication of the

present case by this Hon'ble Court.”

5.

The learne