Full Text
HIGH COURT OF DELHI
JUDGMENT
M/S GRAND SLAM FITNESS PVT LTD & ANR..... Petitioner
Advocates who appeared in this case:
For the Petitioner : Mr. O.P. Faizi, Advocate
For the Respondent :
[ The proceeding has been conducted through Hybrid mode ]
CM APPL. 8316-17(for exemption)
1. These are applications seeking exemption from filing certified/true copies of the annexures.
2. Exemption is allowed, subject to all just exceptions.
3. The applications stand disposed of. CM(M) 266/2023 & CM APPL. 8315/2023 (Stay)
4. Petitioner challenges the order dated 18.10.2022 passed in CS DJ 9722/2016 titled ‘MS OMSA Infrastructure Services P Ltd vs. Ms Grandslam and Others’ whereby the learned trial Court has dismissed the application under Section 151 CPC, 1908 filed on behalf of the petitioner/defendant seeking striking off of Para 20 and 22(a)(i) of the affidavit of evidence of PW namely Mr. Mukesh Malhotra filed on behalf of the respondent/plaintiff.
5. Learned counsel submits that the aforesaid paragraphs regarding which grievance was raised by the petitioner by way of the said application, were not part of the pleadings, in that, they did not form part of either of the plaint or of the replication.
6. Learned counsel submits that the calculations of arrears so made could not have been done by inserting the same in the affidavit of evidence, specially when the same were conspicuous by their absence in the original pleadings.
7. Learned counsel submits that insertion of such extraneous material to the original pleadings cannot form part of the evidence and ought to have been eschewed and expunged by the learned Trial Court which it failed to do.
8. Learned counsel submits that the aforesaid paragraphs could prejudice the case of the petitioner/defendant inasmuch as inserting of the said paragraph in evidence would leave no chance with the petitioner/defendant to rebut the same by way of any pleading, which stage is already over.
9. Learned counsel further submits that even during the evidence which is to be led by the petitioner/defendant, these very paragraphs would not be rebuttable for the reason that the same are not backed by any pleading.
10. Learned counsel submits that since the aforesaid paragraphs were neither part of the plaint nor replication, the written statement or any other defence subsequent to the filing of the replication has not been availed of the petitioner. Thus, learned counsel submits that grave prejudice would be caused in case the present aforesaid paragraphs are permitted to be preserved in the affidavit of evidence of Mr. Mukesh Malhotra.
11. Per Contra learned counsel for the respondent/plaintiff invites attention of this Court to various paragraphs of the plaint, the written statement, the replication specially to Para 9 of all these pleadings to show that the substratum of the case in respect of the arrears of rent, of the service tax payable or already paid is contained in those paragraphs and the petitioner/defendant had ample opportunity to defend its case while answering in the written statement.
12. Learned counsel further submits that insertion of these paragraphs in the affidavit of evidence of Mr. Mukesh Malhotra, specially after the challans and other documents were allowed to be filed on record by the learned Trial Court in an application under Order VII Rule 14, CPC, 1908filed by the respondent/plaintiff, are no more extraneous to the claim as made out by the respondent/plaintiff in its plaint.
13. Learned counsel also submits that the calculations made and shown in the affidavit of evidence are those pertaining to the amounts arising during the subsistence of the rent agreement as also the service tax which was liable to be paid by the petitioner/defendant.
14. This Court has considered the arguments of the learned counsel and has also perused the order as well as the pleadings placed on record.
15. It is informed by the learned counsel appearing for the parties that the order allowing the application under Order VII Rule 14 CPC, 1908 permitting the respondent/plaintiff to place on record the challans and other documents was impugned by way of CM (M) No. 543/2021 and vide order dated 23.08.2021, the petitioner/defendant was permitted to raise all these objections during the trial by the court.
16. This Court, upon consideration of the all relevant materials, is of the firm opinion that the grievance of the petitioner/defendant as raised before this Court can always be considered by the learned Trial Court and relevant objections raised in respect thereof, at the time of crossexamination of PW-1 and any other witness who the respondent/plaintiff purports to bring on record.
17. It is settled law that any evidence, documentary or otherwise, which is beyond the pleadings, can be and should ordinarily be eschewed and expunged from the record.
18. The grievance raised by the petitioner also need not detain this Court, since the viability, authenticity, admissibility or inadmissibility of the documents as well as the aforesaid paragraphs based on such documents is yet to be tried and tested by the learned Trial Court during cross-examination. Learned Trial Court also has observed the same in its impugned order.
19. In view of the above, this Court permits the petitioner/defendant to raise all and any ground contained in present petition and any other legal submissions which the petitioner-defendant is entitled to raise in law to object to the aforesaid paragraphs contained in the evidence of PW Mr. Mukesh Malhotra during the recording of evidence.
20. The observations made in the impugned order shall not stand in the way of the petitioner raising the questions which are strictly in accordance with law.
21. The learned Trial Court shall permit the petitioner/defendant to raise objections and contentions as observed hereinabove in accordance with law.
22. With the aforesaid observations, the petition stands disposed of with no order as to costs.
23. Pending application, if any, also stands disposed of.
TUSHAR RAO GEDELA, J. FEBRUARY 20, 2023