Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:23.04.2012.
+ CM(M) 470/2012 & CM Nos.7244-45/2012
SEEMA ANAND ..... Petitioner
Through Mr.Anil Kathuria, Adv.
versus
PREM KUMAR ..... Respondent
Through Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 Four applications have been disposed of vide the impugned order
dated 21.03.2012. Two applications have been filed by the plaintiff and
two applications have been filed by the defendant. The two applications
filed by the plaintiff were; the first application was under order 13 Rule
2 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’)
seeking permission of the Court to place on record the original
document i.e. agreement to sell by virtue of which he had claimed
CM (M) No. 470/2012 Page 1 of 5
ownership in the suit property; present suit is a suit for possession; the
plaintiff had relied upon the agreement to sell dated 21.04.2008 claiming
ownership in the suit premises; admittedly the photocopy of the
aforenoted document had been filed but it could not be exhibited; in the
course of testimony of PW-1 as the original document was not on
record; it had only been marked; it was at that stage when the present
application had been filed by the plaintiff under Order 13 Rule 2 of the
Code seeking permission of the Court to place on record the original of
the aforenoted document. Reply had been filed opposing the application
primarily on the ground that the original document had not been filed in
the time frame; it should have been filed along with the plaint and could
not have been filed later on. The authenticity and validity of the
aforenoted document has not been questioned. Record shows that along
with the suit for possession photocopy of this document had been filed;
in this application under scrutiny it had been averred that it was only
when the testimony of PW-1 was in progress that the present application
had been filed as the plaintiff realized that it was only a photocopy and
not the original which had been filed; it was then marked and not
exhibited. Validity of the document not being disputed and this
CM (M) No. 470/2012 Page 2 of 5
application having been filed at the stage when the evidence of the
plaintiff was in progress, the impugned order allowing the prayer made
by the applicant/plaintiff in no manner suffers from any infirmity.
2 The second application which had been allowed was the prayer of
the plaintiff seeking permission of the Court to place on record the list
of witnesses was taken on record. This was during the testimony of
PW-1 which was in progress at that stage. The order on this application
also suffers from no infirmity.
3 The defendant is also aggrieved by the finding returned on the
two applications filed by him; first application is under Order 14 Rule 2
of the Code; the second application is under Sections 33/35 of the Indian
Stamp Act; contention in the first application is that a preliminary issue
should be framed which is to the effect that the suit is not maintainable
in the present form; objection of non-joinder of parties had also been
taken. The Court had correctly returned a finding that this application
had been filed at the stage of the evidence of the defendant and as such
no preliminary issue can be framed at that stage when the evidence has
almost culminated and case is ripe for conclusion. The Court had also
noted that on 18.04.2009, a preliminary issue had been framed which
CM (M) No. 470/2012 Page 3 of 5
was to the aforenoted effect:-
“Whether the suit is not maintainable in view of the non-registration of the
agreement to sell and other documents to which the property is transferred which
are related to under stamped as per the later notification?”
4 This issue was disposed of on 21.04.2009; while disposing of this
preliminary issue as also the second preliminary issue which was on
pecuniary jurisdiction, the Court had noted that the question whether the
documents (agreement to sell) is under-stamped or not can be looked at
only after the trial for which purpose evidence is required and cannot be
disposed of at that stage. This finding in the order dated 21.04.2009 was
up-held by the High Court in CM (M) No. 741/2010 on 28.05.2010.
5 By way of the aforenoted present two applications which the
defendant has field, he is seeking to raise the same issue which already
stood decided by the trial Court on 21.04.2009 and stood endorsed by
the High Court on 28.05.2010; these applications filed by the defendant
are nothing but an abuse of the process of the Court and had been filed
only with an intent to delay the progress of the case and this was noted
in the correct perspective in the impugned order.
6 The present petition is an abuse of the process of the Court; it is
filed malafide; it is nothing but one more last ditch effort to delay the
CM (M) No. 470/2012 Page 4 of 5
progress of the case; it is dismissed with costs of Rs.20,000/-.
INDERMEET KAUR, J
APRIL 23, 2012
A
CM (M) No. 470/2012 Page 5 of 5
% Date of Judgment:23.04.2012.
+ CM(M) 470/2012 & CM Nos.7244-45/2012
SEEMA ANAND ..... Petitioner
Through Mr.Anil Kathuria, Adv.
versus
PREM KUMAR ..... Respondent
Through Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 Four applications have been disposed of vide the impugned order
dated 21.03.2012. Two applications have been filed by the plaintiff and
two applications have been filed by the defendant. The two applications
filed by the plaintiff were; the first application was under order 13 Rule
2 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’)
seeking permission of the Court to place on record the original
document i.e. agreement to sell by virtue of which he had claimed
CM (M) No. 470/2012 Page 1 of 5
ownership in the suit property; present suit is a suit for possession; the
plaintiff had relied upon the agreement to sell dated 21.04.2008 claiming
ownership in the suit premises; admittedly the photocopy of the
aforenoted document had been filed but it could not be exhibited; in the
course of testimony of PW-1 as the original document was not on
record; it had only been marked; it was at that stage when the present
application had been filed by the plaintiff under Order 13 Rule 2 of the
Code seeking permission of the Court to place on record the original of
the aforenoted document. Reply had been filed opposing the application
primarily on the ground that the original document had not been filed in
the time frame; it should have been filed along with the plaint and could
not have been filed later on. The authenticity and validity of the
aforenoted document has not been questioned. Record shows that along
with the suit for possession photocopy of this document had been filed;
in this application under scrutiny it had been averred that it was only
when the testimony of PW-1 was in progress that the present application
had been filed as the plaintiff realized that it was only a photocopy and
not the original which had been filed; it was then marked and not
exhibited. Validity of the document not being disputed and this
CM (M) No. 470/2012 Page 2 of 5
application having been filed at the stage when the evidence of the
plaintiff was in progress, the impugned order allowing the prayer made
by the applicant/plaintiff in no manner suffers from any infirmity.
2 The second application which had been allowed was the prayer of
the plaintiff seeking permission of the Court to place on record the list
of witnesses was taken on record. This was during the testimony of
PW-1 which was in progress at that stage. The order on this application
also suffers from no infirmity.
3 The defendant is also aggrieved by the finding returned on the
two applications filed by him; first application is under Order 14 Rule 2
of the Code; the second application is under Sections 33/35 of the Indian
Stamp Act; contention in the first application is that a preliminary issue
should be framed which is to the effect that the suit is not maintainable
in the present form; objection of non-joinder of parties had also been
taken. The Court had correctly returned a finding that this application
had been filed at the stage of the evidence of the defendant and as such
no preliminary issue can be framed at that stage when the evidence has
almost culminated and case is ripe for conclusion. The Court had also
noted that on 18.04.2009, a preliminary issue had been framed which
CM (M) No. 470/2012 Page 3 of 5
was to the aforenoted effect:-
“Whether the suit is not maintainable in view of the non-registration of the
agreement to sell and other documents to which the property is transferred which
are related to under stamped as per the later notification?”
4 This issue was disposed of on 21.04.2009; while disposing of this
preliminary issue as also the second preliminary issue which was on
pecuniary jurisdiction, the Court had noted that the question whether the
documents (agreement to sell) is under-stamped or not can be looked at
only after the trial for which purpose evidence is required and cannot be
disposed of at that stage. This finding in the order dated 21.04.2009 was
up-held by the High Court in CM (M) No. 741/2010 on 28.05.2010.
5 By way of the aforenoted present two applications which the
defendant has field, he is seeking to raise the same issue which already
stood decided by the trial Court on 21.04.2009 and stood endorsed by
the High Court on 28.05.2010; these applications filed by the defendant
are nothing but an abuse of the process of the Court and had been filed
only with an intent to delay the progress of the case and this was noted
in the correct perspective in the impugned order.
6 The present petition is an abuse of the process of the Court; it is
filed malafide; it is nothing but one more last ditch effort to delay the
CM (M) No. 470/2012 Page 4 of 5
progress of the case; it is dismissed with costs of Rs.20,000/-.
INDERMEET KAUR, J
APRIL 23, 2012
A
CM (M) No. 470/2012 Page 5 of 5