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HIGH COURT OF DELHI
Date of Decision: 20.08.2024
NIRUPA BERRY .....Plaintiff
Through: Mr.Ashim Sood, Ms.P.Kaul, Mr.Yugant Goel, Mr.Vansh
Bhulani, Mr.Dhruv Bhagat, Mr.Prateek Kundu, Advs.
Through: Mr.S.K.Bhaduri, Adv.
JUDGMENT
1. IA 25942/2023 has been filed by the plaintiff under Order VII Rule 14 of the Code of Civil Procedure, 1908 (in short, ‘CPC’), praying for permission to place on record an additional document, which the plaintiff claims is a Power of Attorney executed by the defendant no.1 through defendant no.2 in favour of one Mr. Ramji.
2. IA 25404/2023 has been filed by the plaintiff seeking recall of witness PW-2, that is, Mr. Sunil Kapoor, for further examination qua the Power of Attorney sought to be placed on record through IA 25942/2023.
3. In the application, it is asserted that the present Suit has been filed seeking specific performance of the sale deed dated 24.11.2004 with respect to the agricultural land measuring 9 Bighas 12 Biswas in Khasra No.93 (4-16) and 94 (4-16) with built up farm house, boundary wall, tube well, electric connection and other fittings and fixtures, situated in village Sultanpur, Tehsil Hauz Khas, New Delhi (hereinafter referred to as the ‘Suit Property’).
4. The defendant no.1, two years after filing of the Suit, has filed his own suit, which is CS(OS) no.1872/2013, titled M/s Goel Estate & Promoteres Pvt. Ltd. v. Nirupa Berry seeking possession of the Suit Property from the plaintiff.
5. By an Order dated 19.03.2015, this Court directed tagging of the two Suits.
6. The Issues in the present Suit were framed on 03.07.2013 and thereafter, due to tagging of the two Suits, were reframed by the Order dated 11.08.2015.
7. The plaintiff led his evidence in form of two witnesses, that is, himself and a summoned witness, namely Mr.Sunil Kapoor, Advocate (PW-2). The cross examination of PW-2 concluded on 05.04.2019. Later, PW-2 informed the plaintiff that he has discovered the original Power of Attorney referred to herein above from his old official files and records. The plaintiff, therefore, filed the present application to place the said Power of Attorney on record.
8. The learned counsel for the plaintiff submits that no prejudice would be caused to the defendants if the said document is taken on record, inasmuch as, the witness of the defendant has merely tendered his evidence by way of affidavit and has only partially been cross examined. He further submits that this document is vital and necessary for a just and proper adjudication of the present Suit.
9. On the other hand, the learned counsel for the defendants submits that no reason has been given by the plaintiff for not producing this document at the time of filing of the Suit or immediately thereafter.
10. Placing reliance on Order VII Rule 14 of the CPC, he submits that even if the document is not in possession or power of the plaintiff, the plaintiff should have stated so in the plaint and also about whose possession or power the said document was in. He submits that there is no reference of this document in the plaint or even in the subsequent pleadings or evidence filed by the plaintiff. This document appears for the first time along with the present application, and after the closure of evidence of the plaintiff and the cross examination of the defendant having already begun.
11. He submits that there is no due diligence on part of the plaintiff and no explanation has been given by the plaintiff for the inordinate delay in producing the present document. In support, he places reliance on the Judgment of the Court in J.K. Kashyap v. Rajiv Gupta & Ors., 2012 SCC OnLine Del 3796.
12. The learned counsel for the defendants further submits that the document now sought to be produced on record is not the genuine and has not been signed by the defendants.
13. I have considered the submissions made by the learned counsels for the parties.
14. Order VII Rule 14 of the CPC reads as under:
15. In the present case, it is the case of the plaintiff that the document now being sought to be placed on record was not in the power and possession of the plaintiff at the time of the filing of the Suit. The said document surfaced only when PW-2, a summoned witness, while shifting through his record found the said document. An affidavit of PW-2 has also been filed by the plaintiff in this regard pursuant to the Order dated 01.04.2024 of this Court.
16. The document now sought to be produced may have a vital bearing on the adjudication of the Suit and the dispute raised therein.
17. While there is no gainsaying that the plaintiff should have disclosed this document in the plaint or at least should have made a reference to it even if the document was not in the power or possession of the plaintiff, at the same time, looking into the stand taken by the plaintiff in the application as also the affidavit filed by PW-2 pursuant to the Order of this Court, the said document deserves to be allowed to be taken on record even at this belated stage.
18. Though I am aware that the plaintiff has sought to move these applications at a belated stage, however, the Court has to ensure that the procedures do not in any manner prejudice a party from laying his/her claim/defence to the Suit. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. The court should be guided by the principle of ensuring that the lis between the parties should be fully and finally settled rather than being scuttled on technicalities.
19. At the same time, there is a substantial delay on part of the plaintiff in producing the document in question. Production of the same at this belated stage is also going to cause a delay in the adjudication of the Suit. Therefore, the plaintiff must be burdened with costs.
20. As far as the relevance, genuineness, etc., of this document are concerned, the same shall be determined by this Court on appreciating the evidence led by the parties on the same.
21. In view of the above, and subject to the plaintiff paying costs of Rs.[1] lac to the defendants within a period of four weeks from today, the above mentioned document be taken on record. PW-2 is allowed to be re-summoned by the plaintiff for giving additional evidence. The defendants shall have an opportunity to cross-examine him on the said document.
22. The defendant no.2 has already filed his evidence by way of affidavit and his cross-examination has also begun. The defendants shall be at liberty to file an additional evidence by way of affidavit within a period of two weeks of the conclusion of the cross-examination of PW-2.
23. The applications are disposed of in the above terms. CS(OS) 67/2011 & I.A. 17555/2019
24. The plaintiff shall file the additional evidence by way of affidavit of PW-2 within two weeks from today.
25. The learned counsels for the parties shall thereafter request the learned Local Commission for fixing the dates for further crossexamination of PW-2 and thereafter, for further proceedings in terms of the Order passed today.
26. List before the learned Joint Registrar (Judicial) for reporting of the further progress of the case on 26th November, 2024.
NAVIN CHAWLA, J AUGUST 20, 2024/RN/VS Click here to check corrigendum, if any