Rainbow Travels & Anr v. New High Flying Travels Pvt Ltd

V.B.GUPTA, J. mw

* HIGH COURT OF DELHI : NEW DELHI CM (M) No. 1144/2010 & CM No. 16015/2010 % Judgment reserved on: 6th September, 2010 Judgment delivered on: 14th September, 2010 1. M/s Rainbow Travels B-106, Surajmal Vihar, Near Yamuna Sports Complex, Delhi-110092 ….Petitioner No.1. 2. Mr. Rajesh Thakur Proprietor M/s Rainbow Travels B-106, Surajmal Vihar, Near Yamuna Sports Complex Delhi- 110092. ….Petitioner No.2 Through: Ms. Pushp Gupta, Advocate Versus M/s New High Flying Travels Pvt. Ltd. E-34, First Floor, Connaught Place, New Delhi (Through Sh. Sunil Talwar, Director) ….Respondent Through: None Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. By way of this petition filed under Article 227 of Constitution of India, petitioner has challenged order dated 31.7.2010 passed by Senior Civil Judge, vide which, evidence of Petitioner was closed. 2. Brief facts are that in February, 2006 respondent (plaintiff in trial court) filed a suit for recovery of Rs.65,131/- against present petitioners (defendants in trial court). Petitioner No.2 filed cross claim in the suit, in April, 2006. On 31.7.2010, since no witness of petitioner was present, trial court closed the evidence of petitioners. 3. It is contended by learned counsel for petitioners that trial court has closed the petitioner"s evidence without any cogent reason and as such prejudice has been caused to them. The order closing petitioner"s evidence without giving any reason is also contrary to law and without jurisdiction. 4. It is also contended that when petitioners were not able to bring the witness of its own, then under Order 16 Rule 1A of the Code of Civil Procedure (for short as "Code") petitioners sought assistance of the Court under Order 16 Rule 1 (3) of the Code. Trial court also failed to mark the attendance of the petitioner who was present on the date of hearing. In support, learned counsel cited following judgments:- a) Glaverbel S.A. vs. Dave Rose and Ors. 152 (2008) DLT 577, b) Mange Ram vs. Brij Mohan & Ors. (1983) 4 SCC 36; c) Link Engineers (P) Ltd. vs. M/s Asea Brown Boveri Ltd. & Ors. 140 (2007) DLT 533; d) Jagat Singh & Anr. vs. Hoshiari Devi & Ors. 157 (2009) DLT 90; e) Smita Chaudhry vs. Uma Devi, 2008 (100) DRJ 293; f) D.R.Puri vs. Kamlesh Sawhney & Ors. 54 (1994 ) DLT 493; g) Dr. (Mrs.) Aruna Batra vs. Dr. Jaidev Batra, II (1987) DMC 79and h) Amar Singh vs. Hans Raj Sachdeva And Others, 20 (1981) DLT 17. 5. Present petition has been filed under Article 227 of the Constitution of India. It is well settled that jurisdiction of this Court under this Article is limited. 6. In Waryam Singh and another vs. Amarnath and another, AIR 1954, SC 215, the court observed; This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in – "Dalmia Jain Airways Ltd. V. Sukumar Mukherjee", AIR 1951 Cal 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors." 7. In light of principles laid down in the above decision, it is to be seen as to whether present petition under Article 227 of the Constitution of India against impugned order is maintainable or not. 8. Relevant provisions of Order 16 Rule 1 and 1A of the Code read as under:- "1. List of witnesses and summons to witnesses- (1)On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the pur