Right To Lead Evidence May Be Closed If Party Acts In 'Recalcitrant Fashion', Unjustifiably Refuses To Produce Witnesses For Examination: Delhi HC

The Delhi High Court has observed that where a party is acting in a recalcitrant fashion, and refusing to make the witness available for examination or cross- examination on repeated occasions without due justification, the court may close the party's right to lead evidence.

Justice C Hari Shankar added that while it is a matter of Court's discretion which takes a call on the request of the party to lead evidence and that the Court may be ill-inclined in a petition under Article 227 to interfere, it said that such principle applies equally to the Court which passed the order under challenge as to the Court which is seized of the challenge under Article 227.

"The self-imposed proscriptive limitations under Article 227 of the Constitution of India cannot be permitted to bind the hands of a court where, in the process, the cause of substantial justice would be the causality," the Court added.

The Court was dealing with a plea challenging an order dated 4th March, 2022 passed by the Additional Rent Controller in an eviction petition preferred by the respondent against the petitioner.

Given the limited nature of the controversy in these vide order dated 14th December, 2021, the ARC rejected the request of the petitioner seeking an adjournment on the ground of indisposition of the respondent's witness, who was a senior citizen.

The ARC was of the opinion that as the matter had been adjourned since long, awaiting recording of the petitioner's evidence, and costs had also been imposed on the petitioner in that regard, no occasion arose to grant any further opportunity to the petitioner to lead evidence.

The right of the petitioner to lead his evidence was, therefore, closed. The petitioner had then moved an application under Order XVIII Rule 17 read with Section 151 of the CPC seeking recall of the aforesaid order. Said application was dismissed by the ARC vide order dated 4th March, 2022.

Reiterating his earlier decision that several opportunities had been granted to the petitioner to lead evidence, and expressing a view that if, despite grant of last opportunity, further adjournment was sought, the direction of grant of last opportunity would become meaningless, the ARC rejected the petitioner's application under Order XVIII Rule 17 CPC and held that the petitioner was not entitled to any further opportunity to lead evidence.

The Court was of the view that the right to lead evidence, in support of their respective stands, is a valuable vested right in parties in any civil or criminal litigation, and, save for exceptional reasons, said right should not be lightly forfeited.

"Having said that, if a party is acting in a recalcitrant fashion, and refusing to make the witness available for examination/cross- examination on repeated occasions without due justification, the court may, in a given case, close the party's right to lead evidence," the Court said.

Perusing the impugned order dated 4th March, 2022, the Court was of the view that the same indicated that the inability of the petitioner to lead evidence was not owing to any avoidable negligence, but was largely for valid and unavoidable reasons.

"A bare glance at the aforesaid sequence of dates would reveal that though, undoubtedly, the matter was adjourned on several occasions after the petitioner was first directed to lead evidence, the petitioner could not be attributed any avoidable negligence or indolence in prosecuting the proceedings before the court, or in leading evidence," the Court observed.

Accordingly, the Court observed that keeping the interests of substantial justice in mind, the petitioner ought to be granted one opportunity to lead his evidence.

"It is made clear that the petitioner (the respondent before the learned ARC) should present himself for recording of his evidence tomorrow i.e. 20th May, 2022 and that the petitioner should have the remaining three RWs available for recording of their evidence on the next date to be fixed by the learned ARC," the Court added.

The plea was thus allowed.

Case Title: M/S BHARAT INVESTMENT CORPORATION v. SMT. SANJANA SAINI

Citation: 2022 LiveLaw (Del) 476

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