What are Dilatory Tactics?
Dilatory tactics are methods by which the rules of procedure are used by a party to a lawsuit in an abusive manner to delay the progress of the proceedings.
Dilatory tactics are methods by which the rules of procedure are used by a party to a lawsuit in an abusive manner to delay the progress of the proceedings.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 08, 2008
Date of Order : October 16, 2008
CM(M) 1146/2007
16.10.2008
Sujata Aggarwal ...Petitioner
Through: Mr. Manu Nayar with
Mr. Hameed S. Shaikh, Advs.
Versus
Ravi Shankar Agarwal ...Respondent Through: Mr. Sunil Mittal and
Mr. V.S. Pandey, Adv.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
Yes.
2. To be referred to the reporter or not ? Yes.
3. Whether judgment should be reported in Digest ? Yes.
JUDGMENT:
1. By this order, I shall dispose of this petition preferred by the wife against the orders dated 3rd March, 2007 and 23rd March, 2007 passed by
learned ADJ.
2. The case was at the stage of wife's evidence. Wife had to file an affidavit in her examination-in-chief, as per directions of the Court, within 3 days of 21st November, 2006. She did not file the affidavit. Thereafter,
again directions were given on 3.3.07 to the wife to file her affidavit within
one week. The affidavit was still not filed. On 23rd March, 2007 when the case
was fixed for evidence, a proxy counsel appeared and moved an application for
adjournment and Court noticed the conduct of petitioner in not filing affidavit
and not appearing in the Court. When objection was raised by the husband's
counsel, proxy counsel for the wife told the Court that affidavit shall be filed
within half an hour and after half an hour an affidavit was produced, but copy
of the same was still not given to the husband's side saying that the same was
not ready. The wife was not there for her cross examination. Looking at the
entire conduct of the wife that she was not appearing in the Court and even the
previous cost imposed by the Court was not paid, the husband's counsel opposed
the application for adjournment. The adjournment was sought by the proxy
counsel on the ground that regular counsel could not come as his father was ill.
The Court observed that it was the respondent who was to appear in the Court for
her cross examination and she had been repeatedly avoiding to appear in the
Court. Since there were no grounds given for her non-appearance, her defence
was struck off by the Court.
3. The order dated 3rd March, 2007 is in respect of disposal of the application moved on behalf of the wife under Order 16 Rule 1 CPC, Order 18 Rule
3(a) CPC and Order 17 Rule 2 CPC whereby she wanted to summon the records of
other Courts and to summon the witnesses who had made statements in other Courts
and she wanted that parents of the husband, the Chartered Accountant of the
husband should also be summoned in the Court as defence witnesses.
4. The Trial Court found that the case was fixed for respondent's evidence on 29th December, 2005. Thereafter, no respondent witness was ever
present in the Court. Respondent did not examine even herself in her defence
and only moved different applications. When the Court gave directions for wife
to appear and examine her witnesses on 14th November, 2006, instead of examining
herself she moved 4 applications. Those applications were dismissed with costs
vide order dated 21st November, 2006. On next date when the matter was fixed
for respondent's evidence and directions were given to file affidavit within 3
days, instead of appearing, she got moved 2 more applications.
5. On next date of hearing, the costs was not paid and the respondent/wife also did not appear. Another application under Section 151 CPC
was moved for her exemption from cross examination. The Court found that the
6. The respondent/wife in her application had taken a plea that she was suffering from tuberculosis of Urinal track and related gynecological
problems due to which she was unable to bear any kind of stress and was unable
to stand and move out of the house as her blood pressure shoots up and because
of these health conditions she was not able to come to the Court. She should
therefore be allowed to examine her other witnesses and she should be exempted
from examining herself first. The husband denied that she was suffering from
any disease as stated by her and stated that she had been seen moving around in
shopping centres. The medical certificate filed by her only showed that she was
under treatment since 25th May, 2006. The Trial Court found that although the
respondent did not file her affidavit by way of evidence in the Court, but she
filed several affidavits supporting various applications moved by her. That
showed that she had been coming to the Court and executing other affidavits.
Even her plea that she was not able to hold urine for more than 10 minutes, was
not supported by her medical certificate. The medical certificate filed showed
that she was undergoing treatment of Pyrexia of unknown origin.
7. The Trial Court also observed that her claim that she was not able to visit the Court stood belied from her repeated visits to the Court for
filing affidavits supporting applications. The number of applications moved and
number of affidavits filed by her showed that her plea of being not able to come
to the Court was false. The Court also found that if she was not in a position
to stand or move, as claimed by her, she would not have been able to come to
Court even for moving various other applications. She made several applications
on various dates running into numerous pages and with each application an
affidavit was there. Thus, the Court dismissed the application of the wife
under Order 18 Rule 3(a) with costs of Rs.2,500/- However, the Trial Court
still gave the adjournment despite finding that the respondent was guilty of
delaying the proceedings, imposing further costs of Rs.5,000/-. It was also
made clear to the respondent that she would appear on next date of hearing and
would also pay the entire costs including costs imposed on 3rd March failing
which her defence would be struck off.
8. In order to consider the challenge to these orders, the Court will have to look at the conduct of the petitioner/wife and see whether her
prayer had been sincere or she had been taking the Court for a ride because she
had enough money power, on the basis of which she has been assailing every order
of the lower Court before High Court.
9. The wife herein is facing a Divorce petition filed by the husband. The Divorce petition was filed in 1998 and appearance was put by her
counsel on 15th January, 1999. A perusal of record of Trial Court shows that
thereafter the effort of the wife had been to see to it that this case does not
proceed further. One leg of the wife had been in the High Court and almost
every order passed by the leaned ADJ was challenged before this Court.
10. This Court in an earlier petition no. CM(M) 1742/2004 filed by the wife made following observations:- ?In the meanwhile, it appears that the respondent/husband has been under cross
examination for the last three years and as many as 25 days of hearing have
taken place. There has to be a finality to the cross examination of the respondent and it cannot be go on interminably. Consequently, other than the cross examination relating to the documents
mentioned in Item Nos. 1 to 9 on pages 21 and 22, the cross examination of the
respondent must be concluded positively on the next date of hearing, that is,
23rd December, 2004?
11. Above order of this Court and the orders passed by Trial Court right from the start of case show the intentions of the respondent.
12. A perusal of the order sheets of the Trial Court would show that every kind of excuse available on the earth had been put forward for
statement of the husband in examination-in-chief only on 30th January, 2001.
Thereafter, the cross examination of husband was concluded on 22.11.2005 only,
after this Court passed above stated order. In between respondent or her
counsel did not appear in the Court on 27th August, 2001 even to receive the
alimony paid by the husband. On 11th February, 2002, counsel for the respondent
wanted the proceedings to be stayed on the ground that he had preferred a
revision before the High Court, despite the fact that there was no stay granted.
The Trial Court still adjourned the case for cross examination of the petitioner. On next date, on 20th March, 2002, none appeared for the respondent/wife neither his counsel appeared. The Court still did not proceed
ex parte and re-listed the matter.
13. On 4th April, 2002, an adjournment was sought on the ground of her ailment. Several adjournments were sought on the ground that the matter may
be settled. However, whenever the matter was fixed for cross examination of
husband, instead of cross examining him the counsel for the wife had moved an
application and sought adjournment on one or the other ground. Even when he
cross examined, the cross examination was made in prolix manner to make it
linger on. The counsel also sought adjournments on his personal grounds,
sometime his brother-in-law was ailing, sometime he had to attend the school of
his child, sometime on the ground that a relative had expired. The respondent
had all along been not appearing in Court on one or the other ground.
14. The petitioner had filed number of petitions and appeals in this Court right from the beginning. Every petition filed in this Court was
accompanied by the affidavits of the petitioner. Number of petitions along with
affidavits filed by the petitioner as gathered from the record of this case are
CM(M)1742/2004, CM(M)14/2007, CM(A)5724/07, CM(A)10747/07, RFA 230/07, CM(M)14428/07, CM(M)997/07 C.R.No.397/01 and CM(M)969/06.
15. It is evidently clear from the entire proceedings that the effort of the petitioner had been to see that divorce petition filed by husband
16. The ground on which husband sought divorce is desertion. The petitioner/wife had an option to lead her evidence to show that she had not
17. The Supreme Court in M.R. Tyagi vs. Sri Devi Sahai Gautam Civil Appeal No. 3241/2006 decided on 2.8.2006 made following observations in respect
18. It is noteworthy that on her ground of illness while she sought adjournments, she did not move an application that she be examined on commission. Her plea that she was not in a position to come to the Court
because she had urinary problem had been rightly disbelieved by Trial Court.
The Trial Court also rightly struck off her defence on the ground that she was
unwilling to appear in Court and unwilling to lead evidence.
19. I find that this petition is a frivolous petition and is liable to be dismissed with exemplary costs. The petition is dismissed with costs of
October 16, 2008
SHIV NARAYAN DHINGRA J. ak
http://www.indiankanoon.org/doc/1426499/
Date of Reserve: September 08, 2008
Date of Order : October 16, 2008
CM(M) 1146/2007
16.10.2008
Sujata Aggarwal ...Petitioner
Through: Mr. Manu Nayar with
Mr. Hameed S. Shaikh, Advs.
Versus
Ravi Shankar Agarwal ...Respondent Through: Mr. Sunil Mittal and
Mr. V.S. Pandey, Adv.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
Yes.
2. To be referred to the reporter or not ? Yes.
3. Whether judgment should be reported in Digest ? Yes.
JUDGMENT:
1. By this order, I shall dispose of this petition preferred by the wife against the orders dated 3rd March, 2007 and 23rd March, 2007 passed by
learned ADJ.
2. The case was at the stage of wife's evidence. Wife had to file an affidavit in her examination-in-chief, as per directions of the Court, within 3 days of 21st November, 2006. She did not file the affidavit. Thereafter,
again directions were given on 3.3.07 to the wife to file her affidavit within
one week. The affidavit was still not filed. On 23rd March, 2007 when the case
was fixed for evidence, a proxy counsel appeared and moved an application for
adjournment and Court noticed the conduct of petitioner in not filing affidavit
and not appearing in the Court. When objection was raised by the husband's
counsel, proxy counsel for the wife told the Court that affidavit shall be filed
within half an hour and after half an hour an affidavit was produced, but copy
of the same was still not given to the husband's side saying that the same was
not ready. The wife was not there for her cross examination. Looking at the
entire conduct of the wife that she was not appearing in the Court and even the
previous cost imposed by the Court was not paid, the husband's counsel opposed
the application for adjournment. The adjournment was sought by the proxy
counsel on the ground that regular counsel could not come as his father was ill.
The Court observed that it was the respondent who was to appear in the Court for
her cross examination and she had been repeatedly avoiding to appear in the
Court. Since there were no grounds given for her non-appearance, her defence
was struck off by the Court.
3. The order dated 3rd March, 2007 is in respect of disposal of the application moved on behalf of the wife under Order 16 Rule 1 CPC, Order 18 Rule
3(a) CPC and Order 17 Rule 2 CPC whereby she wanted to summon the records of
other Courts and to summon the witnesses who had made statements in other Courts
and she wanted that parents of the husband, the Chartered Accountant of the
husband should also be summoned in the Court as defence witnesses.
4. The Trial Court found that the case was fixed for respondent's evidence on 29th December, 2005. Thereafter, no respondent witness was ever
present in the Court. Respondent did not examine even herself in her defence
and only moved different applications. When the Court gave directions for wife
to appear and examine her witnesses on 14th November, 2006, instead of examining
herself she moved 4 applications. Those applications were dismissed with costs
vide order dated 21st November, 2006. On next date when the matter was fixed
for respondent's evidence and directions were given to file affidavit within 3
days, instead of appearing, she got moved 2 more applications.
5. On next date of hearing, the costs was not paid and the respondent/wife also did not appear. Another application under Section 151 CPC
was moved for her exemption from cross examination. The Court found that the
respondent/wife was only indulging in dilatory tactics. It was also observed
that only 3 adjournments can be granted to a party for evidence and respondent
was not entitled to any further adjournment. But the Court still gave one more
opportunity.
6. The respondent/wife in her application had taken a plea that she was suffering from tuberculosis of Urinal track and related gynecological
problems due to which she was unable to bear any kind of stress and was unable
to stand and move out of the house as her blood pressure shoots up and because
of these health conditions she was not able to come to the Court. She should
therefore be allowed to examine her other witnesses and she should be exempted
from examining herself first. The husband denied that she was suffering from
any disease as stated by her and stated that she had been seen moving around in
shopping centres. The medical certificate filed by her only showed that she was
under treatment since 25th May, 2006. The Trial Court found that although the
respondent did not file her affidavit by way of evidence in the Court, but she
filed several affidavits supporting various applications moved by her. That
showed that she had been coming to the Court and executing other affidavits.
Even her plea that she was not able to hold urine for more than 10 minutes, was
not supported by her medical certificate. The medical certificate filed showed
that she was undergoing treatment of Pyrexia of unknown origin.
7. The Trial Court also observed that her claim that she was not able to visit the Court stood belied from her repeated visits to the Court for
filing affidavits supporting applications. The number of applications moved and
number of affidavits filed by her showed that her plea of being not able to come
to the Court was false. The Court also found that if she was not in a position
to stand or move, as claimed by her, she would not have been able to come to
Court even for moving various other applications. She made several applications
on various dates running into numerous pages and with each application an
affidavit was there. Thus, the Court dismissed the application of the wife
under Order 18 Rule 3(a) with costs of Rs.2,500/- However, the Trial Court
still gave the adjournment despite finding that the respondent was guilty of
delaying the proceedings, imposing further costs of Rs.5,000/-. It was also
made clear to the respondent that she would appear on next date of hearing and
would also pay the entire costs including costs imposed on 3rd March failing
which her defence would be struck off.
8. In order to consider the challenge to these orders, the Court will have to look at the conduct of the petitioner/wife and see whether her
prayer had been sincere or she had been taking the Court for a ride because she
had enough money power, on the basis of which she has been assailing every order
of the lower Court before High Court.
9. The wife herein is facing a Divorce petition filed by the husband. The Divorce petition was filed in 1998 and appearance was put by her
counsel on 15th January, 1999. A perusal of record of Trial Court shows that
thereafter the effort of the wife had been to see to it that this case does not
proceed further. One leg of the wife had been in the High Court and almost
every order passed by the leaned ADJ was challenged before this Court.
10. This Court in an earlier petition no. CM(M) 1742/2004 filed by the wife made following observations:- ?In the meanwhile, it appears that the respondent/husband has been under cross
examination for the last three years and as many as 25 days of hearing have
taken place. There has to be a finality to the cross examination of the respondent and it cannot be go on interminably. Consequently, other than the cross examination relating to the documents
mentioned in Item Nos. 1 to 9 on pages 21 and 22, the cross examination of the
respondent must be concluded positively on the next date of hearing, that is,
23rd December, 2004?
11. Above order of this Court and the orders passed by Trial Court right from the start of case show the intentions of the respondent.
12. A perusal of the order sheets of the Trial Court would show that every kind of excuse available on the earth had been put forward for
seeking adjournments and all tactics had been adopted to delay the proceedings.
The issues in the case were framed on 1st June, 2000. The Court could recordstatement of the husband in examination-in-chief only on 30th January, 2001.
Thereafter, the cross examination of husband was concluded on 22.11.2005 only,
after this Court passed above stated order. In between respondent or her
counsel did not appear in the Court on 27th August, 2001 even to receive the
alimony paid by the husband. On 11th February, 2002, counsel for the respondent
wanted the proceedings to be stayed on the ground that he had preferred a
revision before the High Court, despite the fact that there was no stay granted.
The Trial Court still adjourned the case for cross examination of the petitioner. On next date, on 20th March, 2002, none appeared for the respondent/wife neither his counsel appeared. The Court still did not proceed
ex parte and re-listed the matter.
13. On 4th April, 2002, an adjournment was sought on the ground of her ailment. Several adjournments were sought on the ground that the matter may
be settled. However, whenever the matter was fixed for cross examination of
husband, instead of cross examining him the counsel for the wife had moved an
application and sought adjournment on one or the other ground. Even when he
cross examined, the cross examination was made in prolix manner to make it
linger on. The counsel also sought adjournments on his personal grounds,
sometime his brother-in-law was ailing, sometime he had to attend the school of
his child, sometime on the ground that a relative had expired. The respondent
had all along been not appearing in Court on one or the other ground.
14. The petitioner had filed number of petitions and appeals in this Court right from the beginning. Every petition filed in this Court was
accompanied by the affidavits of the petitioner. Number of petitions along with
affidavits filed by the petitioner as gathered from the record of this case are
CM(M)1742/2004, CM(M)14/2007, CM(A)5724/07, CM(A)10747/07, RFA 230/07, CM(M)14428/07, CM(M)997/07 C.R.No.397/01 and CM(M)969/06.
15. It is evidently clear from the entire proceedings that the effort of the petitioner had been to see that divorce petition filed by husband
does not proceed. The mandate of the legislature is that proceeding under Hindu
Marriage Act should come to an end within six months.
16. The ground on which husband sought divorce is desertion. The petitioner/wife had an option to lead her evidence to show that she had not
deserted and the fault lied on the side of the husband. Instead of leading
evidence, appearing in the Court she had just seen to it that the case does not
proceed.
17. The Supreme Court in M.R. Tyagi vs. Sri Devi Sahai Gautam Civil Appeal No. 3241/2006 decided on 2.8.2006 made following observations in respect
of grant of repeated adjournments by Courts:
?............ at the same time we must impress upon the Courts that its approach, however liberal, must be in consonance with the interest of justice
and fair to both the parties. Misplaced sympathy in favour of any of the
parties results in injustice to the other party. The courts have the solemn
duty to maintain a judicial balance. We must deprecate such irresponsible
approach of Courts granting numerous and unnecessary adjournments in the
strongest terms. The frequent grant of unnecessary adjournments has come in for
very serious public criticism. It is not surprising that frequent adjournments
are unnecessarily sought, but what is surprising is that Courts generously grant
such adjournments, regardless of the fact that it results in delayed disposal of
cases, involves loss of public time, increases the financial burden of the
litigants, and tarnishes the image of the judiciary. It is high time Courts
stop granting unnecessary adjournments. The High Courts must take serious note
of adjournments freely granted, even if unnecessary, and as a follow up action
call upon the judicial officers concerned, in appropriate cases, to justify the
numerous and unnecessary adjournments granted.?
18. It is noteworthy that on her ground of illness while she sought adjournments, she did not move an application that she be examined on commission. Her plea that she was not in a position to come to the Court
because she had urinary problem had been rightly disbelieved by Trial Court.
The Trial Court also rightly struck off her defence on the ground that she was
unwilling to appear in Court and unwilling to lead evidence.
19. I find that this petition is a frivolous petition and is liable to be dismissed with exemplary costs. The petition is dismissed with costs of
Rs.50,000/-.
October 16, 2008
SHIV NARAYAN DHINGRA J. ak
http://www.indiankanoon.org/doc/1426499/
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