The court has the discretion to reopen evidence even after it has been closed, if the party seeking to reopen the evidence can show sufficient cause for the delay and if the reopening of evidence is in the interests of justice.

$~1

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 3^rd January, 2022

+

C.R.P. 231/2019 & CM APPLs. 45392/2019 & 2947/2020

HDFC LTD

..... Petitioner

Through:

Mr. Karnail Singh, Advocate

versus

ANUKARAN MALIK

..... Respondent

Through:

Mr. Subey Singh Panwar, Advocate

CORAM:

JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J.(Oral)

1. This hearing has been done through video conferencing.

2. The present petition challenges two impugned orders dated 10th

April, 2019 and 2nd July, 2019 passed by the Trial Court in CS

No.55486/16 titled Anukaran Malik v. Housing Development Finance

Corporation Ltd.

3. The background of this matter, is that the Respondent/Plaintiff

(hereinafter

“Plaintiff”)

filed

a

suit

for

recovery

against

the

Petitioner/Defendant (hereinafter “Defendant”) in 2013, seeking recovery

of a sum of Rs. 16,80,000/- along with interest. The said suit was at the stage

of trial and the Defendant, which is an NBFC, sought to lead evidence of a

witness, i.e., DW-2-Ms. Geetika Vaish. Though her evidence by way of an

affidavit was filed, DW-2 was not present before the Trial Court for

tendering of the affidavit and for cross examination. An adjournment was

sought on the ground that she had to urgently leave for Mumbai due to

2022:DHC:34

official work. This adjournment was refused and the evidence of the

Defendant was closed vide order dated 10th April, 2019. An application was

thereafter preferred by the Defendant under Order XVIII Rule 17 CPC,

seeking reopening of evidence of DW-2 and recall of the said order dated

10th April, 2019, which was also rejected. In effect therefore, the evidence

of the Defendant stood closed. Hence this petition.

4. Mr. Karnail Singh, ld. Counsel appearing for the Defendant, submits

that only one witness is to be produced by the Defendant before the Trial

Court, therefore an opportunity may be granted to the Defendant to produce

DW-2, on the terms and conditions that this Court deems fit. He submits that

the reason for non-production of DW2 was genuine as she had to travel for

official work to Mumbai.

5. On the other hand, Mr. Panwar, ld. Counsel appearing for the Plaintiff

submits that since inception of the suit, the conduct of the Defendant has

been to delay the trial of the suit and adjudication thereof. Ld. counsel has

taken the Court through the relevant order sheets of the Trial Court to argue

that the Defendant’s conduct does not deserve any indulgence and costs

have been repeatedly imposed on it for such conduct. Ld. counsel further

submits that the revision is not maintainable under Section 115 CPC against

an order closing evidence, as per the judgment of the Supreme Court in Shiv

Shakti Co-operative Society, Nagpur v. M/s. Swaraj Developers, (2003)

AIR SCW 2445. He further urges that two orders being challenged in one

revision petition is also not permissible. The application under Order XVIII

Rule 17 CPC was also beyond limitation, having been filed beyond the 30

day period. Hence, he submits that on maintainability and on merits, this

revision petition is liable to be dismissed.

2022:DHC:34

6. This Court has primarily perused the relevant order sheets in the suit,

since inception. This shows that undoubtedly, the Defendant has been

repeatedly taking adjournments. The suit was filed in 2013 and issues were

framed by the Trial Court way back on 18th September, 2015 and since

then, the Defendant has delayed the cross-examination of the Plaintiff’s

witness, made incorrect submissions concerning DW-1, the Defendant was

also proceeded against ex parte, costs were imposed on the Defendant,the

Defendant’s opportunity to cross-examine was also closed, and finally the

Defendant’s evidence has been closed. The order sheet is replete with orders

wherein either the Defendant is not appearing or a proxy counsel is

appearing who is unable to conduct the proceedings and see