Full Text
HIGH COURT OF DELHI
LAXMAN PUBLIC SCHOOL SOCIETY & ANR. ..... Petitioners
Through: Mr. Saurabh Kirpal, Senior Advocate with Mr. Rajinder Singh, Mr. Moinuddin Khan, Ms. Tanima Gaur, Mr. Piyush Gupta and Mr. Lakshya Dheer, Advocates.
Through: Mr. Prashant Mehta with Ms. Ishita Choudhry, Advocates.
JUDGMENT
1. The present petition has been filed under Article 227 of the Constitution of India against the order dated 25th October, 2021 passed by the Senior Civil Judge (West), Tis Hazari Courts, Delhi in CS SCJ No.607119/2016, whereby the Trial Court while appointing a Local Commissioner to record the evidence of PW-9, has held that objections raised by the petitioners/defendants with regard to mode of proof and admissibility of document marked as Ex.PW-9/1(Colly) in the affidavit by way of evidence, will be considered at the time of final arguments. 2021:DHC:3771
2. Before I proceed to deal with the contentions raised by the counsels on merits, I would like to highlight the part of the impugned order wherein it is recorded that the present suit was filed in the year 1984 and is the oldest matter in the Court. It is a sad state of affairs that a suit filed in 1984 still remains pending.
3. Earlier, I had occasion to deal with an application (CM No.9194/2021) in a petition under Article 227 of the Constitution of India arising out of the same suit, which was disposed of vide order dated 1st October, 2021. The said petition, under Article 227 of the Constitution of India, being CM(M) 150/2020, was preferred by the respondents before this Court challenging the order dated 22nd January, 2020 passed in the suit, dismissing the application filed on behalf of the respondents herein under Order VII Rule 14 of the Code of Civil Procedure, 1908 (CPC) seeking to place on record additional documents. This Court vide judgment dated 6th February, 2020 while disposing of CM(M) 150/2020 filed on behalf of the respondents herein, passed the following directions: “12. However, the suit in question concerns land related to a school and as to who would be controlling the said school. The nature of the suit is such that the Court cannot ignore relevant and important evidence that the Plaintiff society wishes to adduce at this stage. The delay that has been caused, has resulted in the Defendants continuing to be in the management of the school. Thus, no prejudice is caused to the Defendants if the Plaintiff is allowed to lead the evidence of two witnesses - PW[8] and PW[9]. Considering the nature of the suit and the nature of the adjudication that is required in the present suit, the Plaintiff is being put to terms. The following directions are accordingly issued in the present petition:-
(i) The affidavits ofPW[8] and PW[9] shall be taken on record.
(ii) The affidavit of PW-9 running into 182 pages is, however, rejected. The Plaintiff-PW[9] shall filed a fresh affidavit within a period of two weeks from today before the Trial Court which shall not run into more than 25 pages. The only documents permitted to be exhibited by PW[9] with his evidence would be the R TI records obtained from the DDA, which are sought to be placed on record, subject to the objections as to mode of proof and admissibility.
(iii) The examination in chief of PW[9] shall commence on 24th February, 2020, which is the date already fixed before the ld. Trial Court. On the said date, examination-in-chief of PW[9] shall be recorded, as well as all the objections which the Defendants wish to take. A date shall be fixed in the month of March for cross examination of PW[9]. The cross examination of PW[9] shall be concluded within a period of three sessions before the Trial Court, of not more than three hours each. After the conclusion of PW9's evidence, PW[8] shall appear before the Trial Court and shall be cross examined by the Defendants.”
4. After the aforesaid judgment was passed by this Court, it was expected that the trial in the suit would proceed smoothly and as per the schedule laid down by this Court. However, that was not to be. Since there was a delay of two days in filing of the affidavit of evidence of PW-9 from the time fixed by this Court, the Trial Court dismissed the application for condonation of delay in filing the said affidavit and did not take the same on record. Accordingly, an application was filed before this Court by the respondents, being CM No.9194/2020 in the disposed of petition, CM(M) 150/2020, for condonation of delay and taking on record the affidavit of evidence filed on behalf of PW-9. The said application was vehemently contested on behalf of the petitioners. The application, though filed on 6th March, 2020, before the onset of the Covid-19 Pandemic, could not be taken up for hearing for a long period of time and after resumption of work, was heard by this Bench on 8th September, 2021, 9th September, 2021 and 01st October, 2021. Vide order dated 1st October, 2021, the said application was allowed and the affidavit of evidence of PW-9 was directed to be taken on record. The operative part of the said order is reproduced below: “11. Accordingly, the present application is allowed and the affidavit of evidence ofPW-9 dated 23rd July, 2021 is directed to be taken on record by the Trial Court. All contentions/objections of the respondents with regard to exhibits mentioned in the said affidavit can be made before the Trial Court. Rest of the directions contained in the order dated 6th February, 2020 passed by this Court would continue to operate and there is no modification in the aforesaid directions by the present order.”
5. Once again, it was expected that the trial in the suit would proceed uninterruptedly thereafter. But the parties are before this Court once again by way of the present petition.
6. After the order passed by this Court on 1st October, 2021, an application under Order XXVI Rule 9 of the CPC was filed before the Trial Court on behalf of the respondents, seeking appointment of Local Commissioner for recording evidence of PW-9 on the ground that PW-9 (Sh. Prabhat Raman) is suffering from various co-morbidities and the aged father of PW-9 stays with him who remains at high risk of Covid-19 infection. The said application was vehemently opposed by the petitioners by filing a reply. The said application was allowed by the Trial Court vide impugned order dated 25th October, 2021 and a Local Commissioner was appointed for recording evidence of PW-9. As regards the objections of the petitioners with regard to admissibility and mode of proof of documents as sought to be exhibited by the affidavit of evidence of PW-9, it was held by the impugned order that the said objections filed on behalf of the petitioners shall be considered at the time of final arguments. In this regard, the relevant portions of the impugned order are extracted below: “Thus, from reading of above part of order dated 01.10.2021 shows that the word shall is not used instead ·the words used are· may be / can be. The Hon' ble High Court has nowhere directed that the objections are to be decided as and when raised. The present matter pertains to the year 1984 and is still at the stage of recording of evidence. The defendants have already raised their objections in the form of an application as mentioned above. The Hon'ble High Court has already allowed vide order 01.1.0.2021 that the affidavit of evidence of PW[9] dated 23rd July 2021 to be taken on record. Further, it is stated that "the only document sought to be exhibited under the said affidavit are the documents obtained from the DDA under the Right to Information Act 2005, which was as per the mandate of the order passed by this Court on 06th February 2020." It is settled principle of law mere putting exhibit mark on a document does not tantamount to proof of it. Keeping in view the nature of the case, I deem it fit that the objections which have been raised in the form of an application regarding mode of proof and admissibility of document Ex. PW9/l can be / may be raised at the time of tendering of the evidence affidavit of PW[9] which will form part of the record and as per submissions of Ld. Counsel for the defendants the same have been raised in the form of application as well. The said objections may be argued and shall be considered at the time of final arguments.”
7. It was further noted in the impugned order that any objection to any question or any document during the course of cross-examination or examination-in-chief shall be recorded by the Local Commissioner and the same shall be decided by the Court, but that itself shall not be a ground not to continue and conclude the examination as well as cross-examination. The Local Commissioner was requested to conclude the recording of evidence not later than 17th November, 2021.
8. At the very outset, Mr. Saurabh Kirpal, senior counsel appearing on behalf of the petitioners states that he has no objection with regard to the examination of PW-9 by a Local Commissioner. He draws attention of the Court to paragraph 3 of the evidence by way of affidavit of PW-9 to contend that certain documents are sought to be exhibited by way of the present affidavit which are beyond what was permitted by this Court in its order dated 6th February, 2020. In response thereto, Mr. Prashant Mehta, counsel appearing on advance notice on behalf of the respondents states that the exhibit “Ex.P-52 (Colly)” referred to in paragraph 3 of the said affidavit is only a reference to a document exhibited earlier and is not sought to be exhibited by means of the present affidavit. Accordingly, the grievance of the petitioners in this regard stands satisfied.
9. Next, the senior counsel for the petitioners draws attention of the Court to paragraph 70 of the said affidavit to contend that various documents sought to be exhibited as Ex.PW-9/1 (Colly) cannot be allowed to be so exhibited as the mode of exhibition of such documents is not permissible in law. It is contended that since the documents sought to be exhibited as Ex.PW-9/1 (Colly) were obtained by one Mr. Umesh Chandra, who is a third party, the same could not have been exhibited in the affidavit of evidence of PW-9.
10. He contends that the objection with regard to mode of proof of documents and their admissibility should be decided at the outset and should not be held back till the time of final arguments in the suit. In this regard, reliance is placed on the judgment of the Supreme Court in Dayamathi Bai Vs. K.M. Shaffi, (2004) 7 SCC 107 and Shalimar Chemical Works Limited Vs. Surendra Oil and Dal Mills (Refineries) and Ors., (2010) 8 SCC 423, and judgments of this Court in Amarjit Singh and Anr. Vs. Surinder Singh Arora and Anr., 2017 SCC OnLine Del 7147 and Prakash Oil Corporation and Anr. Vs. Brij Kishan, 2019 SCC OnLine Del 10325.
11. Per contra, counsel appearing on behalf of the respondents submits that directions passed by this Court in judgment dated 6th February, 2020 were limited to the extent of the petitioners taking objection with regard to mode of proof and admissibility of the documents sought to be exhibited by the respondents, but there was no direction to decide the objections so raised at the outset. Therefore, there is no infirmity in the impugned order passed by the Trial Court in holding that the objections of the petitioners would be decided at the time of final hearing of the suit. It is further submitted that in any case, it was pre-mature for the Trial Court to decide the objections as the originals of the aforesaid documents would be produced by the respondents at the time of tendering the evidence by way of affidavit before the Local Commissioner. Reliance is placed on the judgment of a Single Judge of this Court in Brij Praksh Gupta Vs. Ashwini Kumar, MANU/DE/0469/2020 and the Delhi High Court (Original Side), Rules, 2018 (Original Side Rules) to contend that the objections with regard to mode of proof and admissibility of the documents can be adjudicated at the stage of final hearing of the suit.
12. I have heard the rival contentions.
13. I will first deal with the judgments cited by both parties so that there is clarity in the position of law on the controversy in question. The petitioners have placed reliance on the judgment of the Supreme Court in Dayamathi Bai supra that lays down the proposition that where an objection is taken towards the mode of proof of a document, the same has to be taken promptly when the evidence is tendered and it cannot be raised at a later stage. However, the said judgment does not lay down the proposition that the said objection has to be decided at that stage only by the Trial Court.
14. In the next judgment relied upon by the petitioners, in Shalimar Chemical Works supra, the Supreme Court observed that the Trial Court should not have marked as exhibits the photocopies of the documents filed by the plaintiff in the face of the objections raised by the defendant and further, that the issue of admissibility of the photocopies of the documents should have been decided immediately. The said judgment is not applicable in the facts and circumstances of the present case as the objection of the petitioners in the present case is not with regard to photocopies of the documents filed, but is in respect of mode of proof of the said documents.
15. Similar is the position in the judgment of the Single Judge of this Court in Amarjit Singh supra. In the said case, the objection taken was with regard to the documents being unstamped and unregistered and photocopies of the originals, which is not the case in the present case.
16. Next, reliance was placed by the petitioners on the judgment of the Single Judge of this Court in Prakash Oil Corporation supra. In the said judgment, relying upon the judgment of the Supreme Court in Bipin Shantilal Panchal Vs. State of Gujarat & Anr., (2001) 3 SCC 1, it was held, whether the objection with regard to mode of proof and/or admissibility of a document should be decided by the Trial Court immediately or at the stage of final hearing of the case, would depend on the factual circumstances of each case. Paragraph 15 of Prakash Oil Corporation supra is set out below: “15.This however does not mean that if the court is recording evidence, the Court cannot take a view on mode of proof and/or admissibility at the stage when it is raised. If the court is able to take a view at that stage, there would be clarity. It would depend on the factual circumstances in each case and the perception of the Court if the trial is likely to be delayed. The endeavour always ought to be to conclude the trial as expeditiously as possible. This court is of the view that court has to strike the right balance - allowing objections regarding exhibited documents to be captured in the statement of the witness and permitting cross examination to be conducted without prejudice to the objections raised, would strike the right balance between ensuring that the trial is not protracted and that the rights of the party are also not jeopardised, especially if the court is of the opinion that the objections raised require detailed hearing and adjudication and witnesses ought not to be inconvenienced and summoned repeatedly to the court.”
17. Thereafter, the Single Judge proceeded to lay down the procedure to be followed by the Trial Court at the stage of final arguments. Paragraph 18 of the said judgment is set out below: “18. The only question that remains is that once the objections are recorded, how is the Trial Court to proceed with the final arguments. Once the trial concludes and the cross-examination has been conducted by the parties, without prejudice to the objections as to the documents, at the stage of final arguments, the Trial Court would hear the objections on the documents first. The court would then take a view on which documents are being considered for the purpose of adjudication of the issues and proceed to hear final arguments. The Court would then give its reasons in the initial part of the final judgment, making clear as to which of the documents are being considered for the purposes of finally adjudicating the issues. Once the adjudication takes place, in a comprehensive manner in the final judgment, both in respect of the documents and the issues framed in the suit, the same could be the subject matter of an appeal which may be preferred by any of the parties. If this procedure is not adopted, trials in the suits would get substantially prolonged and delayed, which is not the purpose of the amendments to the CPC in 2002 and the Commercial Courts Act, 2015.”
18. Reliance has also been placed in Prakash Oil Corporation supra on Rule 11 of Chapter XI of the Original Side Rules, which has also been cited by the respondents in the present case. It was observed by the Court in Prakash Oil Corporation supra that the purpose of Rule 11 is that the trial is not prolonged and is concluded in an efficient manner. Rule 11 of Chapter XI of the Original Side Rules is reproduced below: “Chapter XI
11. Objections to exhibition of documents.- (i) Objection(s) to exhibiting any document or its production, shall be recorded to be decided at the time of decision of the suit/ other original proceeding or at such time as the Court considers appropriate.
(ii) In case, the Registrar/ Commissioner considers that the objection(s) needs to be decided forthwith, he shall place the matter before Court, without delay after recording of reasons for the same.”
19. Next, I proceed to deal with the judgment in Brij Praksh supra cited on behalf of the respondents. In Brij Praksh supra, reliance has been placed by the Single Judge on the judgment of the High Court of Bombay in Harakchand Gulabchand Dhoka Vs. Kashinath Narsingh Marathe (2010) 4 AIR Bom R 31, and judgment of this Court in Ramesh Kumar Arora Vs. Bhola Nath & Ors. 2011 (125) DRJ 356.
20. In Harakchand Gulabchand Dhoka supra, the High Court of Bombay has held as under: “6 The submission of the learned counsel for the petitioner was that as the Apex Court has held that the aggrieved parties can file objections in writing to any portion of an affidavit in lieu of examination-in-chief, it is the duty of the Court to consider the objections on merits and to pass appropriate order dealing with the objections. The learned counsel for the petitioner is right when he says that the objection has to be considered. However, it is necessary to see at what stage it should be considered and in what manner the objection should be dealt with. Considering the scheme of the amended provisions of the said Code, objection raised in writing will have to be considered at the time of final hearing of the suit or proceeding. If on the basis of the objection, the Court finds that certain statements made in the affidavit are beyond the scope of the pleadings, the Court can always discard that part of the evidence while delivering the final Judgment. On the basis of such objection raised, the Court has no power to order deletion of the certain portions of the affidavit but the Court certainly has a power to discard a part of the evidence while deciding the suit. xxx xxx xxx
8 The very object of amending rule 4 of Order XVIII of the said Code is to ensure that there is a speedy trial. The object is to ensure that the time of the Court is not wasted in recording the lengthy examination-in-chief. Consistent with the said object, it is obvious that the objection raised to any part of the affidavit in lieu of examination-in-chief will have to be considered at the time of final hearing of the suit or proceeding. The party raising objection cannot insist upon the Court considering the said objection before cross examination of the witness starts. In a given case, rival party may not raise objection in writing. As stated earlier, the party can cross examine the witness by inviting attention of the witness to the statements which according to the rival party are objectionable. Even in such a case, at the time of final hearing, objection will have to be considered by the Court though there may not be any specific objection in writing. It is always the duty of the Court to decide as to how much evidentiary value should be given to a particular piece of evidence. If a portion of the affidavit is found to be not relevant or if it is found that the portion has no foundation in the pleadings, the Court can always discard it while deciding the suit.”
21. In Ramesh Kumar Arora Vs. Bhola Nath & Ors. 2011 (125) DRJ 356, a Single Judge of this Court has held as under: “18. A perusal of the aforesaid Rule (4) of Order 18 shows that the purpose of conducting the examination in chief by way of affidavit is to cut short the delay in the recording of the evidence of the parties, as deciding the objection at that stage only causes delay in the disposal of the suit itself.
19. It may be pertinent here to refer to the portion which has been highlighted in the aforesaid Rule which clearly mandates that if a party has any objection then such an objection can be got recorded before the Local Commissioner and the question can be decided ultimately by the Court at the stage of final argument. The whole purpose and the scheme of the aforesaid order is to ensure that there is minimum loss of time in recording the evidence of the parties as it causes incalculable delay in the disposal of the suit.
20. In the instant case also, I feel that since the learned Local Commissioner who had been appointed was an experienced and seasoned Retired Additional District Judge and if at all there was any averment made in the affidavit by the petitioner which was beyond pleadings to which the defendants/applicants had any objection, the same could be taken by him before the learned Local Commissioner and got recorded rather than filing the present application.”
22. The aforesaid judgments were relied upon by this Court in Brij Praksh supra and the legal position with regard to affidavit of evidence was summarized. Paragraphs 8 and 13 of the aforesaid judgment are set out below: “8. …it is clear that when an affidavit by way of evidence is filed, if an objection is raised regarding the same being beyond the pleadings etc., the trial would not be halted but the objections would be recorded and decided at the final stage. Cross-examination too would be permitted, subject to the said objection(s)…
13. A conjoint reading of the above decisions shows that the legal position on affidavits in evidence being filed in lieu of oral examination-in-chief is as under:
1. In cases where the final order would be appealable, the deponent would have to appear before the Court to confirm the contents of the affidavit, for it to form part of the evidence.
2. The deponent can be subjected to cross-examination.
3. The affidavit in evidence should contain facts which are to the deponent’s knowledge. Irrelevant statements cannot be made and the affidavit cannot travel beyond the pleadings.
4. If any part of the affidavit in evidence is objected to, including on the ground of mode of proof or admissibility, such objection(s) can be recorded and subject to the same being decided at the time of final adjudication, the crossexamination could proceed.
5. Unless and until the Court comes to the conclusion that the deposition is totally irrelevant or ex facie beyond the pleadings, deletion from the affidavit in evidence is not usually to be ordered.
6. The affidavit in evidence cannot contain matters of surmise, legal arguments or conjecture and cannot controvert the pleadings on record of either party.”
23. Applying the aforesaid legal propositions, the Court in Brij Praksh supra held that the objections of the defendant as to mode of proof and admissibility of documents etc. if raised, shall be recorded prior to or during the cross-examination and would be liable to be adjudicated at the final stage.
24. Similar is the intent behind Chapter XII of the Original Side Rules for examination through Local Commissioner. Relevant clauses of Rule 8 of Chapter XII of the Original Side Rules are set out as under: “Chapter XII
8. Commission to examine witness.- (i) The court may pass orders for appointment of Commissioners in order to expedite the recordal of evidence.
(iv) The Commissioner shall record all objections raised during recording of evidence and shall not delay or adjourn the recording of evidence on that ground. All such objections shall be decided by the Court at the time of the final hearing.”
25. A perusal of the aforesaid Rule also makes it clear that the Local Commissioner is only to record the objections at the time of recording of evidence and the said objections are to be considered by the Court at the time of final arguments in the case.
26. In the judgment in Bipin Shantilal Panchal supra, the Supreme Court has disapproved of the practice of the Trial Courts proceeding to decide objections with regard to admissibility of any material in evidence and not proceeding further with the trial. In this regard the observations of the Supreme Court are very relevant and are set out below: “13. It is an archaic practice that during the evidencecollecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realized through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.
14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking sage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)
15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.”
27. In light of the various judgments discussed above, the legal position that emerges is that there is no absolute proposition of law that the objections with regard to mode of proof and admissibility of the documents have to be decided by the Trial Court immediately after the same are taken. The objector has to immediately take the objections with regard to mode of proof of the documents produced along with the affidavit of evidence, but there is no requirement that the Trial Court should decide the same immediately. The Trial Court has absolute discretion keeping in mind the facts and circumstances of the case, to decide the said objections immediately or at the stage of final arguments. If the objections are substantial in nature, the Trial Court has the discretion to decide the same at the stage of final hearing of the case. The intent is that the proceedings in the trial should not be delayed on account of the objections raised with regard to the documents. However, objections raised with regard to deficiency of stamp duty of a document or with regard to documents filed being photocopies have to be decided by the Trial Court before proceeding further.
28. In the present case, the Trial Court has validly exercised its jurisdiction and held that the objections raised by the petitioners with regard to the documents exhibited by the respondents in the affidavit of evidence of PW-9, shall be decided at the stage of final hearing of the case. The endeavour of the Trial Court is towards expeditious trial in the suit that has been pending since 1984 and no fault can be found with the same. As noted above, this Court in its judgment dated 6th February, 2020 in CM(M) 150/2020 between the same parties, had also directed that the objections with regard to mode of admissibility of the documents will be recorded by the Trial Court, however, there was no direction given by this Court that the said objections be decided forthwith.
29. It has also rightly been contended on behalf of the counsel for the respondents that the objections raised by the petitioners are premature, as in the present case the original of the documents sought to be exhibited are to be produced by the respondents before the Local Commissioner (LC) appointed by the Court at the time of tendering his evidence. It is only at that stage that the documents will be exhibited.
30. Therefore, in my view, there is no infirmity in the order passed by the Trial Court that requires interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. In fact, the present petition is clearly an attempt to delay the proceedings in the suit, which has been pending before the Trial Court since 1984.
31. Dismissed with costs of Rs.50,000/- to be paid to the respondents. AMIT BANSAL, J. NOVEMBER 23, 2021 dk/ak