RADHEY SHYAM Vs. NIRMAL KANT

JUDGEMENT

(1.) THE petitioner is aggrieved by an order dated 17th September 2008 whereby the trial court imposed a cost of Rs. 20,000/- on the petitioner for not brining the evidence and seeking adjournment.

(2.) BRIEF facts relevant for the purpose of deciding this petition are that vide order dated 21st July 08 the defendant was directed to produce all his witnesses and a cost of Rs. 5,000/- was imposed on that day on the defendant for not brining the evidence. Thereafter, the matter was listed on 17th September 2008. The defendant had also made an application under Order 18 Rule 17 CPC for recalling the plaintiff"s witnesses for cross examination. This application was kept pending for arguments. On 17th September 2008 again no affidavit of defendant witnesses had been filed and no evidence was produced by the defendant. When the matter was taken up, counsel for the defendant insisted that his application under Order 18 Rule 17 be disposed of first and he may be allowed to lead evidence only later on. The trial court observed that the matter was pending since 1999 and the effort of the defendant was just to delay the proceedings. The defendant had earlier been proceeded ex parte in 2004 and thereafter this ex parte order was set aside. The Court observed that the matter was adjourned for 17th September 2008 with specific instructions to the defendant to file affidavits and lead evidence. However, no affidavit of the witnesses was filed by the defendant and no evidence was led. The Court also made it clear that the defendant should first complete his evidence then only the application under Order 18 Rule 17 shall be heard and decided. On this, counsel for the defendant (petitioner herein) sought one more opportunity which was granted to the defendant subject to cost of Rs. 20,000/-, 50% of the cost was to be deposited in Advocate"s Welfare Fund of Delhi Bar Council.

(3.) THE petitioner's counsel argued that his witnesses were present but their attendance was not marked. I consider that this kind of argument is a malafide argument. The record of proceedings maintained in the Court is considered as an authentic record. The record of court below shows that no evidence was produced, the counsel for the petitioner cannot be allowed to argue that the witnesses were there but their attendance was not recorded.