Dismissed¶18

Akhil Gupta v. M/S Ops Enterprises Pvt. Ltd.

Delhi HC18 Mar 2025CM(M)/508/2025

Case brief

AI extract

What is this about?

CM(M) 508/2025, Decided 18.03.2025, High Court of Delhi, Manoj Jain, J. Keywords: Order XVIII Rule 17 CPC; recall of witness; further cross-examination; witness already discharged; filling lacuna in evidence; change of counsel; trial de novo; exercise of power sparingly; unexplained delay in filing application; Article 227 Constitution of India; limited supervisory jurisdiction; perverse findings; Puri Investments 2022 SCC OnLine SC 283; Estralla Rubber (2001) 8 SCC 97; Garment Craft (2022) 4 SCC 181; Ibrat Faizan (2023) 11 SCC 594; recovery suit for cloth goods; M/s OPS Enterprises Pvt. Ltd.; Akhil Gupta; Tannu Goyal; Naresh Kumar Agarwal PW-1; petition dismissed.

What did the court decide?

Merely because there is a change in counsel would not ipso facto mean that any trial has to be started de novo. ¶13

Akhil Gupta Vs M/S Ops Enterprises Pvt. Ltd. — Writ and Judicial Review | Delhi HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶18

Issue for consideration

Whether the learned Trial Court erred in dismissing the defendant's application under Order XVIII Rule 17 CPC seeking permission to further cross-examine PW-1 after he had been cross-examined and discharged. +1 more

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Court's answer

Merely because there is a change in counsel would not ipso facto mean that any trial has to be started de novo.

¶13

Ratio / Principle

The power under Order XVIII Rule 17 CPC can be invoked suo motu by the Court or at the instance of any party, but it must be exercised sparingly in appropriate situations and not in a routine manner.

¶13

Key takeaways

The main purpose of Order XVIII Rule 17 CPC is to enable the Court to clarify doubts regarding the evidence led by the parties; the provision is never intended to be used to fill up omissions and lacunae in the evidence of a witness who has already been examined.ratio¶14
Where relevant questions were not put during cross-examination, the application ought to have been moved swiftly; the unexplained delay in filing the application (28.08.2024) despite cross-examination having concluded on 30.01.2023 weighed against permitting further cross-examination of PW-1.ratio¶8

Detailed headnote1 paragraphs

Delhi High Court (Manoj Jain, J., oral) dismissed a petition under Article 227 of the Constitution of India challenging the Trial Court's order dated 13.01.2025 rejecting the defendant's application under Order XVIII Rule 17 CPC for permission to further cross-examine PW-1 in a recovery suit filed by M/s OPS Enterprises Pvt. Ltd. (claimed outstanding Rs. 1,12,421/- for cloth goods sold on credit). PW-1 (Mr. Naresh Kumar Agarwal) had been cross-examined and discharged on 30.01.2023; the application was filed only on 28.08.2024, with unexplained delay. Held: (i) a change of counsel does not ipso facto mean that any trial has to be started de novo; (ii) the power under Order XVIII Rule 17 CPC, though exercisable suo motu or at a party's instance, must be exercised sparingly and not routinely; (iii) the provision exists to enable the Court to clarify doubts about the evidence, not to fill up omissions and lacunae in the evidence of a witness already examined; and (iv) following Puri Investments v. Young Friends and Co. and Others, 2022 SCC OnLine SC 283, the supervisory Court interferes only against perverse findings (non-consideration of material evidence, conclusions contrary to evidence, or impermissible inferences). Petition dismissed; pending applications disposed of. (Estralla Rubber, Garment Craft and Ibrat Faizan were referred to on the scope of Article 227 interference.)

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$~51

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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% Date of Decision: 18^th March, 2025

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- CM(M) 508/2025 & CM APPL. 15695-15696/2025 AKHIL GUPTA .....Petitioner

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Through: Mr. Rohit Goswami with Mr. Naman Mitra and Mr. Himanshu Sharma, Advocates.

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versus

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M/S OPS ENTERPRISES PVT. LTD. .....Respondent Through: None.

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CORAM:

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HON'BLE MR. JUSTICE MANOJ JAIN J U D G M E N T (oral)

¶10

Petitioner is defending a suit for recovery.

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He is aggrieved by order dated 13.01.2025 whereby his application moved under Order XVIII Rule 17 CPC has been dismissed by the learned Trial Court.

¶12

The above said civil Suit was filed by M/s OPS Enterprises Pvt. Ltd. through its authorized representative Ms. Tannu Goyal. According to plaintiff, the defendant (petitioner herein) had purchased cloth goods on credit and there was outstanding of Rs. 1,12,421/-.

¶13

After completion of pleadings and framing of issues, the plaintiff Company examined Mr. Naresh Kumar Agarwal (PW-1), its Director/Authorized representative. He was cross examined and discharged on 30.01.2023 .

¶14

The case was thereafter fixed for defendant’s evidence.

¶15

Defendant moved the above said application under Order XVIII Rule 17 CPC seeking permission to further cross examine PW-1. It was contended that the previous counsel had failed to put forward the defence of the

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Signature Not Verified

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CM(M) 508/2025 1

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Digitally Signed By:SONIA THAPLIYAL Signing Da te:2 0.03.2025 11:36:05

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defendant and substantive questions were not put during such cross-examination and, therefore, the permission was sought to call him for further cross examination.

¶20

The learned Trial Court dismissed the above said application while observing as under:-

¶21

“As per record, PW-1 was cross examined and discharged on 30.01.2023 and the matter is at the stage of DE since then. The defendant has failed to point out as to what facts have come into existence during cross examination of PW-1 on which the defendant intends to further cross examine PW-1. It is also not the case that such facts have came into existence after the cross examination of PW-1. . Moreover, simply because certain question were not put in the cross examination earlier by the defendant despite opportunity, the defendant cannot be now given an opportunity to cross examine PW-1 further. Further, it is further seen that the present application has been filed after more than 1.5 years of closing of PE.

¶22

In view of the above discussion, application U/O 18 Rule 17 CPC moved on behalf of the defendant is dismissed.”

¶23

Admittedly, the testimony of PW-1 was completed on 30.01.2023 and, thereafter, the matter was adjourned and fixed for evidence of defendants. In case, certain relevant questions were not put by the learned counsel for the defendant, ideally speaking, the application should have been moved swiftly but there is unexplained delay in filing the above said application. The application was field only on 28.08.2024 whereas the cross examination was concluded lastly on 30.01.2023.

¶24

During course of arguments, learned counsel for the petitioner submitted that, in the interregnum, there was no progress in the civil suit as, on most of the occasions, the case could not be taken up as the learned Presiding Officer happened to be on leave.

¶25

However, such fact would not mean that the petitioner was in no

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Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Da te:2 0.03.2025 11:36:05

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CM(M) 508/2025 2

¶28

position to, even, move an application.

¶29

According to learned counsel for petitioner, there was change of the counsel and once the new counsel took over the matter on 11.12.2023, it was noticed that certain relevant questions, pertaining to authorisation in favour of Ms. Tannu Goyal had not been put.

¶30

It is contended that it was in the above said backdrop that the petitioner was compelled to file the above said application.

¶31

However, merely because there is a change in the counsel would not ipso facto mean that any trial has to be started de novo . The power provided under order XVIII Rule 17 CPC can either be invoked suo moto by the Court or can be exercised at the instance of any of the parties but it is also settled position of law that such power has to be exercised sparingly in appropriate situation and it cannot be exercised in a routine manner.

¶32

The main purpose of the above said provision is to enable the Court to clarify any doubts which it may have with regard to the evidence led by the parties and such provision is never intended to be used to fill up omission and lacuna appearing in the evidence of a witness, who has already been examined.

¶33

This Court is also conscious of the limited scope of appreciation and judicial interference in such type of petition under Article 227 of the Constitution of India.

¶34

As per, Puri Investments Versus Young Friends and Co. and Others: 2022 SCC OnLine SC 283 , the duty of the supervisory Court is to interdict if it finds that the findings are perverse i.e. (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

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Signature Not Verified

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CM(M) 508/2025 3

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Digitally Signed By:SONIA THAPLIYAL Signing Da te:2 0.03.2025 11:36:05

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law. Reference be also made to Estralla Rubber v. Dass Estate (P) Ltd.: (2001) 8 SCC 97; Garment Craft vs. Prakash Chand Goel: (2022) 4 SCC 181 and Ibrat Faizan v. Omaxe Buildhome Private Limited: (2023) 11 SCC 594. 17. In view of foregoing discussion, this Court does not feel persuaded to interfere with the impugned order.

¶39

Resultantly, the petition is dismissed.

¶40

Pending applications, if any, also stand disposed of in aforesaid terms.

¶41

(MANOJ JAIN) JUDGE MARCH 18, 2025/ sw/js

¶42

Signature Not Verified

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CM(M) 508/2025 4

¶44

Digitally Signed By:SONIA THAPLIYAL Signing Da te:2 0.03.2025 11:36:05

Akhil Gupta v. M/S Ops Enterprises Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

Akhil Gupta v. M/S Ops Enterprises Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

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