Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of decision: 7 November, 2019
+ CM (M) 1589/2019
JASBIR KAUR SOHAL ..... Petitioner
Through: Mr. Vijay Joshi and Mr. Himanshu
Pathak, Advocates with petitioner in
person. (M: 9873677817)
versus
FLT LT GURCHARAN SINGH SOHAL (RETD)
& ORS ..... Respondents
Through: Mr. Om Prakash and Mr. R. R. Pathak
Advocate for R-1. (M: 9810794902)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(oral)
CAV 1103/2019
1. Caveat is discharged as Caveator has entered appearance.
CM APPL. 48108/2019 (exemption)
2. Allowed, subject to all just exceptions. Application is disposed of.
CM (M) 1589/2019 & CM APPLs. 48109/2019, 48131/2019
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3. The present petition has been filed challenging the order dated 9
October, 2019 passed by the ld. Trial Court by which the ld. Trial Court has
closed the Petitioner’s/Defendant No.1’s (hereinafter, “Defendant No.1”)
evidence and has refused the prayer to reopen her evidence. The operative
portion of the impugned order reads as under:
“9. Perusal of the order sheets reveals that on various
occasions defendant has been accommodated by the
CM (M) 1589/2019 Page 1 of 8
court on her request for adjournment and on two
occasions even cost of Rs 10,000/- was imposed. Till
date defendant has not filed list of witnesses which is
required to be filed after the framing of issues. RE was
closed on 06.12.2017 and defendant has availed
various opportunities in the last two years to conclude
evidence but it was only after case was fixed for final
arguments she realized that she needs to examine more
witness. This case pertains to 2004 and after a long
journey of 15 years this case has reached at the stage
of final arguments. The various judgements relied upon
by the defendant/applicant are not applicable to the
facts of the present case. The previous counsel of the
defendant who has contested for defendant for the last
so many years, cannot be allowed to be blamed as
negligent and not conducting her case in a proper
manner. As observed by Hon'ble High Court in Aditya
Chatterjee Versus Sudershan Chatterjee, the party is
not allowed to reopen and bridge the perceived gaps in
her evidence after cross examination is concluded.
10. In view of aforesaid reasons, I find no merit in this
application and same is accordingly dismissed.”
4. Ld. counsel for Defendant No.1 submits that Defendant No.1 is the
wife of the Plaintiff/Respondent No.1 (hereinafter, “Plaintiff”) and is
running a Boutique from the shop premises bearing No.22, Archna
Shopping-Complex, Greater Kailash, Part-I, New Delhi-110048
(hereinafter, “shop premises”) , of which possession is being sought by the
Plaintiff.
5. The marriage between the parties already stands dissolved by a decree
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of divorce passed on 3 May, 2018. Ld. counsel for Defendant No.1 submits
that the said decree has been challenged by his client. It is further submitted
that due to the negligence of the counsel who was earlier appearing in the
matter, certain documents, relating to the business which was being
CM (M) 1589/2019 Page 2 of 8
conducted by Defendant No.1 under the name M/s JassKaurInc., could not
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be placed on record. On 23 July, 2019 the evidence was closed and an
application was moved under Order XLVII Rule 1 CPC read with Sections
114 & 151 CPC seeking recall of the said order. The said review application
was dismissed. Ld. Counsel for Defendant No.1 submits that Defendant
No.1 would be irreparably prejudiced if she is not allowed to prove the
documents relating to her business which is being conducted from the shop
premises. He relies on the following judgments: Salem Advocate Bar
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Association, Tamil Nadu v. UOI [W.P.(C) No. 496/2002, decided on 2
August, 2005 by the Supreme Court] and Rano Devi and Ors. v. Ram Lal
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[OWP No. 1603/2018, decided on 28 September, 2018 by the Jammu and
Kashmir High Court] . He accordingly prays that one opportunity may be
given to Defendant No.1 to prove the documents which are already on
record and marked A to E.
6. On the other hand, ld. counsel for the Plaintiff submits that the suit is
quite old and Defendant No.1 has already admitted that the Plaintiff is the
owner of the shop premises. Repeated opportunities were given by the ld.
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Trial Court to Defendant No.1 for leading evidence. In fact, on 12 January,
2008 the Petitioner sought liberty to examine only one witness, which was
permitted by the Court and even that evidence was lead only after three
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adjournments and costs being imposed. On 17 October, 2019, final
arguments have commenced in the matter and the matter is part-heard. It is
submitted that the entire intention of Defendant No.1 has been to delay the
proceedings in the suit and hence, no indulgence should be shown to
Defendant No.1. He relies on the following judgments:
i. P.S.S. Agro & Investment Pvt. Ltd. v. Papita Devi & Ors. [CM
CM (M) 1589/2019 Page 3 of 8
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(M) 1038/2017, decided on 18 September, 2017 by the Delhi
High Court]
ii. Madan Gopal Singh v. Mahinder Kaur & Ors. [CM(M)
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979/2017, decided on 8 September, 2017 by the Delhi High
Court]
iii. Harsh Mani Mohindra v. Sanjay Verma [CM (M) 923/2019,
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decided on 25 September, 2019 by the Delhi High Court]
iv. Shiv Cotex v. Tirgun Auto Plast P. Ltd. and Ors.,
MANU/SC/0991/2011.
7. This Court has heard the ld. counsels for the parties and has also
perused the record. The suit was filed by the Plaintiff in 2004 and is more
than 15 years old. The suit is for possession and injunction. Admittedly,
Defendant No.1 is not paying any amount for occupying the shop premises.
A perusal of the order sheets placed on record shows that repeated
adjournments have been sought by Defendant No.1. This is clear from a
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perusal of order dated 6 December, 2017, on which date evidence of
Defendant No.1 was closed and it was directed as under:
“PW13 Sh. Sharad Jain recalled for further
examination. He has filed documents as directed on
the last date of hearing except certificate u/s 65B of the
Indian Evidence Act. Copy be supplied to both the
parties on the next date. Witness is examined, cross-
examined. Diet money of Rs.300/- paid as directed.
Witness is directed to file proper affidavit u/s 65B of
the Indian Evidence Act. Concerned legal advisor in
the concerned bank is directed to ensure that proper
affidavit is filed on or before next date with two copies
for the parties, failing which branch manager as well
as legal officer shall be liable for contempt
CM (M) 1589/2019 Page 4 of 8
proceedings.
Plaintiff evidence stands closed subject to filing of
affidavit u/s 65B of the Indian Evidence Act.
Defendant counsel has submitted that he needs three
weeks’ time to prepare affidavit as he is out of station.
Head. Allowed.
Affidavit be filed positively in the first week of
January with copy to the opposite party/counsel
through registered post/dasti/email.
Now to come up for filing of affidavit u/s 65B of
the Indian Evidence Act / DE on 12.01.2018. DW1 to
remain present on the next date. Date is given on the
joint request of the parties.”
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8. Thereafter, on 12 January, 2018 one last opportunity was granted to
Defendant No.1 to lead evidence. The said order reads as under:
“ In terms of order dated 06.12.2017, Sh. Sharad Jain
has appeared from ICICI Bank and filed certificate u/s
65B of the Indian Evidence Act and marked it as
Ex.DW13/X. Copy has been supplied.
It is submitted by Ld. Counsel for the defendants
that evidentiary affidavit could not be prepared as
there was bereavement in the family of the defendant
and further wife of the CA of the defendant no.1 also
expired on account of which the affidavit could not be
prepared and documents which were to be tendered
could not be filed. She has sought two weeks time to
do the needful. Affidavits of all defence witnesses to be
examined through affidavit be filed on or before next
date with one week advance copy to the opposite
party/counsel through by hand/email against
acknowledgment. Adjournment has been opposed.
At this stage, counsel for defendants has stated at
bar that only one witness is to be examined i.e.
defendant no.1 herself. In the larger interest of justice,
one last opportunity granted to defendants to lead
evidence.
Matter now be listed for defence evidence on
CM (M) 1589/2019 Page 5 of 8
17.02.2018 and 20.02.2018. Date given with
convenient of counsels. It is made clear to the parties
that the defence shall be concluded in the month of
February and no further adjournment shall be granted
for completion of defence evidence being 10 year old
case. ”
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9. On 20 February, 2018 adjournment was again sought, which was
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granted, subject to costs of Rs.10,000/-. On 17 October, 2019, final
arguments in the matter have commenced.
10. Detailed evidence has been recorded by the ld. Trial Court, on behalf
of both parties. DW-1 has appeared and has been cross-examined. The
documents which Defendant No.1 wishes to rely upon at this stage are as
under:
“a. Copy of Assessment order of M/s Defendants jasskaur Inc.
for the year 2003-04 Mark A
b. Copy of Balance Sheet and Profit and Loss Account of M/s
Jasskaru Inc. for the year 01.04.2000- 31.03.2001 Mark B
c. Copy of balance sheet and profit and loss account of M/s
Jasskaur Inc. for the year 01.04.2001- 31.03.2002 Mark C.
d. Copy of balance sheet and profit and loss account of M/s
Jasskur Inc. for the year 01.04.2003 -31.03.2004 Mark D.
e. Copy of statement of account of Bank of Rajasthan Ltd. for
the period of 01.06.2004 to 30.09.2004 of M/s Jasskaur Inc. Mark A.”
11. A perusal of the above documents shows that they are assessment
orders, balance sheets, profit and loss accounts and bank accounts for
various years, ranging from 2000 to 2004. All these documents were in the
power and possession of Defendant No.1 right from the inception of the suit.
These relate to the years 2000-2004 and a copy of the same were available
with Defendant No.1 since the suit was instituted. The same ought to have
been filed at the relevant time. Even if the allegation of Defendant No.1 that
CM (M) 1589/2019 Page 6 of 8
these documents were with the Plaintiff and hence, the originals were not
available, is accepted, certified copies of these documents could have been
obtained from the Income Tax Department and the Bank. In such matters,
when certified copies of documents can be obtained, there is no need for
civil proceedings to be unnecessarily delayed by summoning witnesses from
these Departments. Copies of these documents are already on record marked
as A to E. The documents were, in fact, marked for identification when
DW-1 had appeared. Thus, copies of the documents having been available
with Defendant No.1 right from the inception of the suit, the application
seeking review is not liable to be entertained inasmuch as there is no error in
the order of the ld. Trial Court closing Defendant No.1’s evidence.
12. The suit being of 2004 vintage, even though amendments may have
been carried out in the plaint, the suit has to be disposed of at some stage.
Defendant No.1 has had the opportunity of giving her complete evidence in
the matter and has also subjected herself to cross-examination. The
documents sought to be brought on record, being documents available with
Governmental Authorities, ought to have been placed on record at the
appropriate stage. Merely blaming the earlier counsel is not sufficient.
Further, the order sheet also shows that Defendant No.1 always wanted to
lead her own evidence and it is only after her evidence has concluded that an
application is being moved for permission to lead further evidence. The
record of this case does not show any requirement to give permission to lead
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further evidence. Moreover, in the judgment dated 3 May, 2018 which has
been relied upon by the Plaintiff, by which the decree of divorce was
granted, the Court has observed that Defendant No.1 admitted that the
Plaintiff is the owner of the shop premises. No use and occupation charges
CM (M) 1589/2019 Page 7 of 8
are also being given by Defendant No.1 to the Plaintiff. The relevant portion
of the Court’s observations is as follows:
“41. From the tone and tenor of the pleadings and the
evidence led by the respondent wife on the record, it is
quite discernible that though the petitioner husband
was economically strong, the respondent wife belonged
to a much wealthy and resourceful family. This class
difference permeates throughout the length and
breadth of their marital life. The greed of the
respondent wife for a share in the wealth or the
property of the petitioner husband is also exemplified
from the fact that she dragged the petitioner husband
to file a suit for possession in respect of Shop No.22
Archna Arcade, although admitting that he was the
legal owner thereof and that she had been paying rent,
yet taking claim of adverse possession so as to
aggravate his pain and miseries.”
13. In the facts and circumstances of this case, no interference is called
for. The ld. Trial Court shall proceed with the final hearing of the matter.
The copies of documents placed on record shall be considered at the time of
final adjudication, if permissible in law. Two weeks’ time is granted to
Defendant No.1 to file certified copies of the documents, as requested. If the
same are filed by this time, the same shall be considered in accordance with
law.
14. With these observations, the petition and all pending applications are
disposed of.
PRATHIBA M. SINGH
JUDGE
NOVEMBER 07, 2019/ dj
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