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Sudhir Trading Co. v/s Manglani Investment (P) Ltd.

    CM(M) Appeal No. 991 of 2008

    Decided On, 25 September 2008

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE SHIV NARAYAN DHINGRA

    For the Appearing Parties: Tarun Chandiok, Advocates.



Judgment Text

SHIV NARAYAN DHINGRA, J.


(1) THE petitioner is aggrieved by an order dated 2. 7. 2008 of the learned ARC dismissing its application under Section 151 CPC for cross examination of Mr. Vinod Kr. Mehta/respondent No. 2 herein (Respondent no. 1 before the Trial Court). The petitioner in its application had contended that the respondent no. 1, who was tenant/respondent in the eviction petition entered into a collusion with the landlord (Respondent No. 1 herein) and made a statement in the Court convenient to the landlord and contrary to his pleadings. Respondent no. 1/Mr. Vinod Kumar Mehta should be allowed to be cross examine on behalf of respondent no. 2 (petitioner herein).


(2) IT is submitted that on the day when respondent no. 1/Mr. Vinod kumar Mehta was examined in the Court, the advocates were on strike. They were on strike from January, 06 to May, 06 and for this reason respondent no. 2 (petitioner herein) could not come to know about the statement of respondent no. 1 and without cross examination of respondent no. 1, leading of evidence by respondent no. 2 would not be in the interest of justice. Therefore respondent no. 2 should be allowed to cross examine respondent no. 1. The application was contested by the landlord, who stated that there was no collusion between the landlord and respondent no. 1, as is evident from the stand taken by the landlord on the date when statement was made and landlord refused to accept the keys of the premises in the Court.


(3) THE Counsel for the petitioner relied on Mohamed Ziaulla v. Mrs. Sorgra Begum and Ors. 1997 AIHC 2628 where the Karnataka High Court has held that if there was no conflict of interest between the co-defendants, the witness of one defendant should be allowed to be cross examined by the other defendant.


(4) THERE is no quarrel with this legal proposition that if there is a conflict of interest between different defendants, the witness of one defendant should be allowed to be cross examined by the other defendant. The cross examination of a witness has to take place when a witness enters into witness box and gives deposition. His examination would reflect whether he had given a statement against the other defendant or not and it is at that stage that the co-defendant has to decide whether he wants to cross examine the witness or not. If the Trial Court refuses the co-defendant to allow the cross examination of a witness of other defendant wherein a statement is made in conflict with the interest of co-defendant, the co-defendant can have a cause to come to the High Court and say that he has not been allowed to cross examine the witness. But where a co-defendant is present in the Court at the time of examination of the defendant, and no desire is expressed to the Court for cross examination of the witness, neither a request is made to allow the co-defendant to cross examination on the ground of conflict of interest and an application is made after about one year of closure of evidence of the co-defendant, it cannot be said that co-defendant was not given an opportunity by that Court to cross examine the witness.



(5) THE ground of "strike" taken by the Counsel for the petitioner is not available to him. The Supreme Court, in numerous judgments, has held that advocates have no right to go on strike and if an advocate chooses to remain absent from the Court on the ground of his going on strike he has an obligation to return the brief along with the fees received by him for conducting the case to the litigant so that the litigant can engage other advocate. The plea of the petitioner that advocates were on strike from January-May, 2006 is otherwise also baseless. Except few advocates who were carrying agitation against the bifurcation of the Courts all other advocates were appearing in the Court and the normal business of the Courts were going on during that period. If an advocate chooses to stay away from the Court, this cannot be a ground to reverse the hands of clock and to put back the trial on the same level. It would not only amount to giving a license to the advocates to go on strike but would actually amount to Court going on strike, which is not permissible. If the Court readily reverses the wheels of justice on the ground of strike, it would in fact amount to punishing those advocates who had been taking courage to appear in the Court during so-called strike period. No premium can be put on the strike of the advocates and the trial of cases cannot be dragged on in the name of the strike of the advocates.


(6) IN this case, the landlord concluded his evidence on 7. 1. 2005 and thereafter, the matter was fixed for respondent?s evidence. The respondent no. 1/mr. Vinod Kumar Mehta appeared in the Court on 2. 12. 2005 and he was examined in the Court on that day. There was no strike of advocates even as per the petitioner on that day. Respondent nos. 2 and 3 were present in person when respondent no. 1/mr. Vinod Mehta testified in the Court and was cross examined by the Counsel for the petitioner. Respondents No. 2 and 3 did not choose to cross examine the witness when he was in the witness box despite the fact that respondents no. 2 and 3 were allegedly sub-tenants and the statement was made by respondent no. 1 in their presence that he had no written consent for sub-letting the premises and he could not trace any written consent with him of sub-letting the premises. He also deposed that he was not in a position to give possession of the sub-let portion, but was ready to give possession of portion in his own possession. The plea of strike therefore is not available even otherwise to the petitioner, who was very much present at the time of recording of statement of respondent no. 1 in the Court and did not chose to cross examine. The evidence of respondent no. 1 was closed on 2. 12. 2005 itself and the matter was adjourned for evidence of the present petitioner, who did not lead evidence despite giving opportunities and sought adjournment on 6. 3. 2006 and on 4. 7. 2006 these adjournments were given subject to costs. The present application was made in November, 2006. The present application was dismissed by the learned arc holding that it was an effort to prolong the trial.


(7) I consider the leaned ARC rightly came to this conclusion tha

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t the respondent (petitioner herein) made this application only to prolong the trial further and to delay the case. It is evident that opportunity to cross examine respondent no. 1/mr. Vinod Kumar Mehta was not denied to the petitioner when respondent no. 1 was in the witness box, petitioner did not choose to cross examine respondent no. 1, their counsel did not appear though there was no strike. Later on adjournments were sought but no application was made for cross examination of these witnesses. This application was made after about one year to drag the trial. I find that there is no force in the petition and this petition is liable to be dismissed. The petition is hereby dismissed. No order as to costs.
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