Neelam Garg v. Shyam Lal Garg

1. Exemption allowed subject to all just exceptions. The application stands disposed of. C.M.(M) No.394 /2014

2. This petition under Article 227 of the Constitution of India is filed by the petitioner/defendant no.1 in the suit, impugning the order dated 07.04.2014 which has dismissed two applications filed by the 2014:DHC:7272 petitioner/defendant no.1 for leading additional oral and documentary evidence.

3. The subject suit is a suit for possession, mesne profits and injunction filed by the respondent/plaintiff/father-in-law against the petitioner/defendant no.1/daughter-in law on the ground that the respondent/plaintiff is the sole and exclusive owner of the suit property bearing no. A-3/25, Sector-3, Rohini, Delhi, which was purchased by the respondent/plaintiff vide sale deed dated 22.03.2000 and that the petitioner/defendant no.1, as also the son of the respondent/plaintiff and who was the defendant no.2 in the suit, were only licensees.

4. Petitioner/defendant no.1 contested the suit and pleaded that the suit property was not exclusively owned by the respondent/plaintiff but was owned by the HUF of the family, and therefore, the respondent/plaintiff is not the sole owner of the suit property.

5. In the present case, after a lengthy trial, the matter was fixed for final arguments vide order dated 06.12.2012 and whereafter for one reason or the other, final arguments could not be addressed and thereafter the subject applications were filed in March, 2014 by the petitioner/defendant no.1.

6. The trial court has given the following reasons for dismissing the applications:- “I have gone through the record. Defendant no.1 has already gone through full fledged trial and after full fledged trial the evidence of defendant no.1 was closed, as stated above and defendant no.1 was granted ample opportunities to lead all the evidence and to examine all the witnesses and to file all the documents at the appropriate stage. Merely because the new counsel is not satisfied with the evidence already lead on the record and wants to lead some more evidence according to his liking cannot be a ground for re-opening the trial, if such kind of pleas are entertained there shall be no finality to any trial. Defendant no.1 cannot be allowed to fill up the lacuna left in the present case. In any case, the documents relied upon by the defendant are admitted documents between the parties with regard to litigation between them which are pending trial. In these circumstances, both the applications are frivolous in nature and appears to have been filed in order to delay the just decision of the present case. Same are dismissed with the costs of Rs.6000/-. Now to come up for final arguments on 29.04.14.”

7. I completely agree with the aforesaid reasoning of the trial court inasmuch as merely because a new counsel represents the petitioner/defendant no.1, and who feels additional evidence is to be led, cannot mean that additional evidence should be allowed to be led and the clock be set back by various years although the suit for possession, mesne profits and injunction is at the last stage of final arguments.

8. I have for the purpose of equity and justice also gone through the additional evidence, which is said to be required to be led, and which is in two parts; first part of additional evidence is the oral evidence of the witnesses and the second part is the documentary evidence. 9(i) So far as the oral evidence is concerned, I doubt as to what at all could be the benefit of such oral evidence with respect to existence of an HUF, and which would have to be proved by clinching documentary evidence, and especially when petitioner/defendant no.1 has already led oral evidence in terms of having been granted various opportunities and thereafter petitioner/defendant no.1 had voluntarily closed her evidence. Change of counsel is thus not a good ground to seek leading of fresh oral evidence.

(ii) So far as the documentary evidence is concerned, I was inclined to consider grant of an opportunity to the petitioner/defendant no.1 so far as this evidence was concerned if there was any relevance of those documents which are now sought to be produced. However, the document to be filed is the income-tax return, which only shows income of the respondent/plaintiff from agricultural property. I fail to understand as to how existence of agricultural income of the respondent/plaintiff can in any manner create an HUF inasmuch as an HUF is created only if a person receives ancestral property prior to passing of the Hindu Succession Act, 1956 or if subsequent to the passing of the Hindu Succession Act, an HUF is created by throwing property in common hotch potch. The income-tax return which is now sought to be filed as proof of HUF has no bearing on the issue of existence of an HUF, therefore, even in equity, justice and good conscience, no purpose would be served by allowing the petitioner/defendant no.1 to lead the fresh evidence.

10. In view of the above, I do not find any reason to interfere with the impugned order dated 07.04.2014 and the present petition is hence dismissed.

VALMIKI J. MEHTA, J DECEMBER 19, 2014 ‘sn’