While observing that the right to lead evidence is pivotal to a fair trial and partakes of the character of natural justice and fair play, the Delhi High Court in an extremely commendable, courageous, cogent, composed and creditworthy judgment titled Deepak v Ramesh Sethi in CM (M) 306/2022, CM APPL. 16699/2022 & CM APPL. 16700/2022 and cited in 2022 LiveLaw (Del) 381 delivered as recently as on April 8, 2022 has said that the Court should not be hyper-technical, in the matter of granting opportunity to lead evidence and the like. The Delhi High Court also made it amply clear that the right to lead evidence is pivotal to fair trial. The Court was dealing with a plea challenging an order dated 16th November, 2021 passed by the Civil Judge whereby the right of the petitioner to lead his evidence, as the defendant in the civil suit was closed.

At the outset, this extremely laudable, learned, landmark and latest oral judgment authored by a single Judge Bench of Delhi High Court comprising of Hon’ble Mr Justice C Hari Shankar sets the ball rolling by first and foremost putting forth in para 1 that:
Learned Counsel for the parties have argued the matter and are agreeable to the matter being disposed of at this stage.

Simply put, the Bench then discloses in para 2 that:
The petitioner is aggrieved by an order dated 16th November, 2021, passed by the learned Civil Judge (the learned CJ), whereby the right of the petitioner to lead his evidence, as the defendant before the learned CJ in CS 9739/2016, was closed.

Truth be told, the Bench then points out in para 3 that:
The petitioner moved an application under Section 151 of the Code of Civil Procedure, 1908 (CPC), for modification of the order dated 16th November, 2021, and for permitting the filing of defence evidence. That application was dismissed vide order dated 05th January, 2022. A further application, seeking review of the order dated 05th January, 2022, was also dismissed by the learned CJ vide order dated 11th March, 2022.

As we see, the Bench then reveals in para 4 that:
This petition, under Article 227 of the Constitution of India, assails all the three orders, i.e. the orders passed on 16th November, 2021, 5th January, 2022 and 11th March, 2022.

To put things in perspective, the Bench then envisages in para 5 that:
The issue in controversy being narrow, it is not necessary to allude to the specifics of the dispute between the parties. Suffice it to state that, by order dated 27th February, 2020, the petitioner was directed to file its defence evidence in the suit, on or before 22nd April, 2020. I may note, here, that Mr. Tripathi, learned Counsel for the respondent, has sought to contend that the petitioner had been remiss on earlier occasions. That, in my view, may not be of particular significance, especially in view of the law laid down by the Supreme Court in State Bank of India vs. Chandra Govindji (2000) 8 SCC 532, in which case the Hon’ble Supreme Court held that, where the refusal of the Court below to grant adjournment on a particular date was under challenge, adjournments granted earlier were irrelevant, as there was a presumption that they were granted for good reason.

To be sure, the Bench then specifies in para 6 that:
Before 22nd April, 2020, the COVID-2019 pandemic had struck the country. Given the constraints faced by litigants, the Supreme Court, on 23rd March, 2020, directed, in Cognizance for Extension of Limitation, In Re (2020) 9 SCC 468, that periods of limitation in all proceedings, irrespective of whether the limitation was prescribed under general or special laws, and irrespective of whether delay was, or was not, condonable would stand extended w.e.f. 15th March, 2020, till further orders to be passed by the Supreme Court. Till the date on which the right of the petitioner to lead defence evidence was closed i.e. till 16th November, 2021, it is not in dispute that this order continued to remain in force.

It is worth paying attention that the Bench then remarked in para 7 that:
Mr. Tripathi has drawn my attention to the judgment of the Supreme Court in Sagufa Ahmed v. Upper Assam Plywood Product Pvt. Ltd. 2021 2 SCC 317. In that case, the Supreme Court was dealing with a situation in which the normal period of limitation for moving the Court had expired prior to 15th March, 2020, and the litigant was seeking the benefit of the order dated 23rd March, 2020, in Cognisance for Extension of Limitation (2020) 9 SCC 468, on the ground that the condonable period of limitation had expired after 15th March, 2020. The Supreme Court turned down the request, opining that the benefit of its order dated 23rd March, 2020, as available only to vigilant litigants and would not in any case apply where the normal period of limitation had expired prior to 15th March, 2020.

It deserves mentioning that the Bench then brings out in para 8 that:
The learned CJ has held the aforesaid order dated 23rd March, 2020, of the Supreme Court as inapplicable to the facts of this case, as, according to him, the latitude granted by the Supreme Court was only in respect of statutory periods of limitation or periods of limitation fixed by the law for the time being in force, whereas the requirement of the petitioner filing its defence evidence on or before 22nd April, 2020 was not on account of any statutory period of limitation but because of an order passed by the Court.

As a note of clarity, the Bench then clearly states in para 9 that:
That aspect may not, however, be of much significance, as the learned CJ, has, in his subsequent order dated 05th January, 2022, noted thus:

Even if the valuable time of the parties lost in COVID-2019 pandemic is deducted, the defendant had enough time to file the affidavit of evidence on several occasions and the defendant has miserably failed to do so. (Emphasis supplied).

It is worth noting that the Bench then lays bare in para 10 that:
This finding of the learned CJ, which is one of the grounds on which the learned CJ did not condescend to re-visit his earlier order dated 16th November, 2021, is not factually correct. As already noted hereinabove, before 22nd April, 2020, being the date by which defence evidence was to be led by the petitioner as per the order dated 27th February, 2020, the COVID-2019 pandemic had already struck and the working of the Courts were in a state of limbo.

Be it noted, the Bench then mentions in para 11 that:
The first occasion when the Court functioned physically, after normal resumption of work was on 25th September, 2021, on which date, the Bar observed a strike. The next date of hearing was on 16th November, 2021, when the impugned order, closing the right of the petitioner to lead defence evidence, was passed.

It cannot be lost on us that the Bench then without mincing any words hastens to add in para 12 that:
If one were to exclude the period lost in the COVID-2019 pandemic, as the learned CJ has himself condescended to do, the first date when the Court functioned physically was, therefore, 25th September, 2021. That being the ground position, without dwelling any further into the aspect of negligence or the issue of whether the petitioner could have been more vigilant, I am of the opinion that the learned CJ ought to have granted one more opportunity to the petitioner to lead defence evidence.

Most significantly, the Bench then enunciates in para 13 what forms the cornerstone of this notable judgment wherein it is held explicitly, elegantly, eloquently and effectively that:
The right to lead evidence is pivotal to a fair trial and partakes of the character of natural justice and fair play. No doubt, where a party is unconscionably indolent, the Court may put its foot down and close the right of the party to lead evidence; else, as adversarial litigations are meant to be tried after allowing the parties to an adequate opportunity to place their respective stands on record, the Court should not be hyper-technical, in the matter of granting opportunity to lead evidence and the like.

Most remarkably, the Bench then also does not mince any words to hold in para 14 that:
Given the peculiar facts of the present case, as (i) the learned CJ had granted time till 22nd April, 2020 to the petitioner to lead evidence, (ii) prior to the said date, the COVID-2019 pandemic had struck and w.e.f. 15th March, 2020, working of courts came to a near standstill, (iii) the first occasion when the learned CJ functioned physically, thereafter, was on 25th September, 2021, when the Bar was on strike, and, (iv) on the very next date, i.e. 16th November, 2021, the learned CJ closed the right of the petitioner to lead defence evidence, I am of the opinion that one more opportunity ought to be granted to the petitioner.

As a corollary, the Bench then states in para 15 that:
In view thereof, the impugned orders are quashed and set aside, to the extent they closed the petitioner’s right to lead defence evidence.

Furthermore, the Bench then directs in para 16 holding that:
The petitioner is directed to file its affidavit of evidence positively within ten days from today.

What’s more, the Bench then stipulates in para 17 that:
Learned Counsel for the petitioner, is, therefore, granted ten days and no more to file affidavit of evidence of its defence witnesses, and to produce the defence witnesses for cross-examination and further proceedings before the learned CJ on 5th May, 2022, when the matter is listed next. No adjournment shall be granted to the petitioner on any account whatsoever. It would be the responsibility of the petitioner to have the defence witnesses ready for cross-examination on the said date.

Finally, the Bench then concludes by holding in para 18 that:
This petition stands disposed of in the aforesaid terms with no orders as to costs.

In a nutshell, we thus see that the single Judge Bench comprising of Justice C Hari Shankar of Delhi High Court has made it exceedingly clear in this brief, brilliant, bold and balanced judgment as spelt out in para 13 that:
The right to lead evidence is pivotal to a fair trial and partakes of the character of natural justice and fair play. No doubt, where a party is unconscionably indolent, the Court may put its foot down and close the right of the party to lead evidence; else, as adversarial litigations are meant to be tried after allowing the parties to an adequate opportunity to place their respective stands on record, the Court should not be hyper-technical, in the matter of granting opportunity to lead evidence and the like. Of course, it definitely goes without saying that all the courts must abide by what the Delhi High Court has laid down in this leading case. This is what best serves in the interest of justice and fairplay! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh