SUNITA KOHLI AND ANR vs KULDEEP SINGH SEJWAL

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 30.05.2024
Judgment pronounced on: 01.08.2024

+ CM(M) 2718/2024, CM APPL. 33486/2024
SUNITA KOHLI AND ANR ….. Petitioners
Through: Mr. Samar Bansal, Mr. Vedant Kapur & Mr. Kaustubh Chaturvedi, Advs.

versus

KULDEEP SINGH SEJWAL ….. Respondent
Through: Mr. Sumit Bansal, Mr. Udaibir Singh Kochar & Ms. Surbhi Tandon, Advs.

CORAM:
HON’BLE MS. JUSTICE SHALINDER KAUR

J U D G M E N T
1. The petitioners are aggrieved by the order dated 20.04.2024 passed by the learned District Judge (Commercial Court)-03, South District, Saket Courts Complex, Delhi (in short “Trial Court”) in CS DJ 394/20, titled as “Kuldeep Singh Sejwal vs. Sunita Kohli” wherein the learned Trial Court closed the defendant’s evidence. Thus, the present petition has been preferred invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to assail the impugned order.
2. Petitioners herein are the defendants and the respondent herein is the plaintiff in CS DJ 394/20 which is pending adjudication before the learned Trial Court.
3. For the purpose of adjudicating the present petition, the relevant facts are that on 21.09.2020, the respondent instituted a suit against the petitioners for ejectment, recovery of arrears of rent and damages/mesne profits with respect to the third-floor property bearing no. F-213 C, Lado Sarai, Old M.B. Road, Delhi-110030 (in short “suit property”). Apart from this, there is another litigation going on between the parties, the specifics of which are not relevant to this case.
4. The petitioners contested the suit by filing their joint written statement on 03.05.2021. Thereafter, both the parties filed their respective affidavits of admission and denial of documents. On 08.09.2021, the respondent moved an application under Order XIII-A CPC seeking a summary judgment in his favour qua the suit property. The said application was dismissed by the learned Trial Court by an order dated 09.09.2022.
5. Subsequently, the respondent challenged the aforesaid order before this Court by way of a CM(M) petition bearing no.1133/2022 which was dismissed on 03.11.2022. After completion of the pleadings, the issues were framed on 10.11.2022. The respondent concluded his evidence on 19.07.2023 and the matter was listed for recording the evidence of the petitioners on 28.08.2023.
6. However, on the said date of hearing, the daughter of the petitioner no. 1 being the sole witness of the petitioners was unavailable and thereafter, the case was adjourned. Subsequently, on 01.02.2024, the petitioners failed to appear before the learned Trial Court, consequently, they were proceeded ex-parte and the matter was listed for final arguments to be held on 13.03.2024 after closing the evidence of the petitioners. On the said date of hearing, an application was moved on behalf of the petitioners under Order IX Rule 7 read with Section 151 CPC to recall the order dated 01.02.2024. Vide order dated 03.04.2024, the learned Trial Court allowed the said application, subject to cost of Rs. 5,000/- to be paid to the respondent. Additionally, the learned Trial Court directed the petitioners to file their evidence by way of affidavit on or before 12.04.2024 and listed the matter on 20.04.2024.
7. On that date, the evidence by way of affidavit of the witness could not be filed earlier because the said witness was travelling and not in India. The learned Trial Court thereupon closed the evidence of the petitioners for the second time. Aggrieved by this order, the petitioners have filed the present petition.
Submissions of the petitioners
8. Learned counsel for the petitioners submitted that the learned Trial Court initially closed the petitioners’ evidence on 01.02.2024 and subsequently closed it for a final time on 20.04.2024 without considering the following: – (i) The petitioners were unable to submit their evidence by way of affidavit on or before 12.04.2024 because their sole witness was travelling for work and was not present in India. (ii) The costs of Rs. 5000/- imposed on the petitioners by the order dated 03.04.2024 was deposited with the Delhi State Legal Services Authority. (iii) The petitioners had brought a copy of the evidence by way of affidavit to be given in advance to the learned counsel for the respondent and requested for any date post 20.04.2024.
9. Learned counsel submitted that the primary objective of a deposition of a witness is to provide all parties in the litigation with a fair preview of the evidence. In the present case, the learned Trial Court failed to consider that the petitioners’ witness, who is the sole caretaker of her old aged parents, was prevented from deposing in Court for five months due to her father’s battle with Cancer and his subsequent passing away.
10. The learned counsel further submitted that although the evidence of the petitioners in defence could not be recorded on some dates of hearing due to certain circumstances which were beyond the control of the petitioners. On 13.10.2023, the evidence of Ms. Kohelika Kohli, the daughter of petitioner no. 1 was to be recorded but she could not make herself available before the Court as her father was hospitalized and the main counsel was held up in an urgent matter before another Court. The learned Trial Court though granted the adjournment but it was subject to cost of Rs. 5,000/- to be paid by the petitioners and the matter was listed for 11.12.2023.
11. On the aforesaid date of hearing, the petitioners’ witness was again unavailable as her father was suffering from advanced stage of Cancer and was in a critical condition. In the interest of justice, the learned Trial Court granted a final opportunity to the petitioners to record their evidence on the next date of hearing and adjourned the matter to 20.01.2024.
12. On 20.01.2024, it was informed before the learned Trial Court that a transfer application had been moved before the Court of learned Principal District & Sessions Judge, South District, Saket Courts seeking transfer of this case as well as other case involving the same parties to a single Court so that both the cases could be decided together. Accordingly, the matter was re-notified for 01.02.2024. However, on 01.02.2024, the petitioners could not appear before the learned Trial Court and were proceeded ex-parte which was set aside vide order dated 03.04.2024.
13. It was submitted that the learned Trial Court should have considered that on 03.02.2024, the petitioners along with their witness reached the Court only to discover that their right to lead evidence had been closed due to an error by the Court staff, who had mistakenly recorded the wrong date in the Court’s ordersheet of 20.01.2024. This error is evident from the Court’s causelist, which correctly listed the date as 03.02.2024. The petitioners promptly inspected the judicial record and filed an application for a certified copy of the order to correct the mistake. Consequently, next 2 months for the five consecutive Court dates i.e. 01.02.2024, 13.03.2024, 22.03.2024, 02.04.2024 and 03.04.2024 were spent in rectifying the error. This period of non-examination of the witness cannot be attributed to the petitioners and their witness.
14. On the other hand, the learned counsel for the respondent supported the impugned order and delineated the conduct of the petitioners for having taken unexplained adjournments and thereby delaying the proceedings of the case. The learned counsel specifically pointed out the various dates on which the adjournments were requested by the petitioners’ w.e.f. 28.08.2023 to 03.04.2024 and submitted that the final arguments were being heard by the learned Trial Court and the matter was ultimately reserved for judgment, which is yet to be pronounced.
15. It was also submitted that from the conduct of the petitioners, it is categorically clear that the petitioners intend to drag the case of the respondent and if an opportunity is granted to the petitioners to lead their evidence at this stage, the petitioners would succeed in their endeavor to flout the law.
16. It was further submitted that the reasons given for unavailability of the witness, citing her father’s illness lacks merits as the witness had been attending functions, parties and award ceremonies which can be verified from social media posts.
17. The learned counsel submitted that the present petition has been filed malafidely as the position of law has been settled that the power of superintendence conferred under Article 227 of the Constitution of India is to be exercised sparingly and only in appropriate cases, in order to keep the Subordinate Courts within the bounds of their authority and not for correcting the errors.
Analysis and conclusion
18. Having heard the submissions at length on behalf of the parties and after perusing the record, I may begin to deal with Article 227 of the Constitution of India. It is relevant to note that this Court while exercising jurisdiction under Article 227 of the Constitution of India is not expected to examine the decision of the Court below by acting as a Court of first appeal. The supervisory jurisdiction is not to correct an error of fact or a legal flaw thereby substituting its own decision on the facts and conclusion as arrived by the Court below. The importance of Article 227 has been examined by the Hon’ble Supreme Court in Celina Coelho Pereira vs. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217, which held as under:-
“The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.”

19. It is further relevant to mention the findings of Hon’ble Supreme Court in Puri Investments vs. Young Friends and Co., MANU/SC/0290/2022, which reads as under:-
“14. In the case before us, occupation of a portion of the subject-premises by the three doctors stands admitted. What has been argued by the learned counsel for the appellant is that once the Tribunal had arrived at a finding on fact based on the principles of law, which have been enunciated by this Court, and reflected in the aforesaid passages quoted from the three authorities, the interference by the High Court under Article 227 of the Constitution of India was unwarranted. To persuade us to sustain the High Court’s order, learned counsel appearing for the respondents has emphasized that full control over the premises was never ceded to the medical practitioners and the entry and exit to the premises in question remained under exclusive control of the respondent(s)-tenant. This is the main defence of the tenant. We have considered the submissions of the respective counsel and also gone through the decisions of the fact-finding fora and also that of the High Court. At this stage, we cannot revisit the factual aspects of the dispute. Nor can we re-appreciate evidence to assess the quality thereof, which has been considered by the two fact-finding fora. The view of the forum of first instance was reversed by the Appellate Tribunal. The High Court was conscious of the restrictive nature of jurisdiction under Article 227 of the Constitution of India. In the judgment under appeal, it has been recorded that it could not subject the decision of the appellate forum in a manner which would project as if it was sitting in appeal. It proceeded, on such observation being made, to opine that it was the duty of the supervisory Court to interdict if it was found that findings of the appellate forum were perverse. Three situations were spelt out in the judgment under appeal as to when a finding on facts or questions of law would be perverse. These are:–
(i) Erroneous on account of non-consideration of material evidence, or
(ii) Being conclusions which are contrary to the evidence, or
(iii) Based on inferences that are impermissible in law.”

20. Thus, imperatively, the jurisdiction of the High Courts under Article 227 of the Constitution of India is limited and to be exercised sparingly in appropriate cases.
21. No doubt in the present case, the petitioners have not been upright in leading their evidence but it is also equally true that the Court should not be hyper technical in the matter of granting opportunity to lead evidence especially when the respondent can be adequately compensated with costs.
22. Taking into overall consideration of the facts of the present case and specifically the petitioners’ contention of illness of father of the sole witness of the petitioners, who passed away and the fact that the petitioners witness was ready with her affidavit by way of evidence on 20.04.2024, in the interest of justice, one last opportunity is being granted to the petitioners to prove their stand on oath, subject to cost of Rs. 25,000/- to be paid to the respondent before the learned Trial Court on the next date of hearing. The petitioners are directed to file the affidavit of their sole witness i.e. Ms. Kohelika Kohli positively within a week from today with an advance copy to the respondent, if already not furnished to the respondent.
23. The petitioners are further directed to produce the defence witness for cross-examination before the learned Trial Court when the matter is listed next. No adjournment shall be granted to the petitioners on any account whatsoever. It would be the responsibility of the petitioners to have the defence witness ready for cross-examination on the said date. If the defence witness is not present before the learned Trial Court when the matter is listed next, then the petitioners’ right to lead evidence shall stand closed without any further order.
24. In view of the aforesaid, the impugned order is set aside. Consequently, the petition is allowed and pending application stands disposed of.

SHALINDER KAUR, J.
AUGUST 01, 2024
ab/ss

CM(M)2718/2024 Page 8 of 9