* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 520/2013 and C.M. No.7804/2013 (stay)
% 1st December, 2014
SMT. SHANTA AGNIHOTRI ......Petitioner
Through: Ms. Vibha Mahajan Seth, Advocate.
VERSUS
M/S. AMAN ASSOCIATES (P) LTD. ...... Respondent
Through: Mr. A.K. Upadhyay, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 8.5.2013 by which the trial court has dismissed the application filed by the petitioner/defendant, in a suit for specific performance and damages, to cross-examine the witness of the plaintiff PW-1 with respect to questions as to why secondary evidence should not be allowed to be led/proved by PW1.
CM(M) No.520/2013 Page 1 of 3
2. It is an admitted fact on record that respondent/plaintiff has been allowed to lead secondary evidence and therefore when secondary evidence is allowed to be led then before leading secondary evidence foundational evidence has to be given being the reasons as to why original evidence is not available for being filed and proved in the court. With respect to this foundational evidence which is required to be led, surely, the other side i.e the petitioner/defendant is always entitled to cross-examine the witness for confronting the witness with the questions that the original evidence is not being led in the court not for the reasons as stated by the witness but for other reasons as contended by the petitioner/defendant.
3. In the present case, counsel for the petitioner who was also the counsel for the petitioner/defendant in the trial court, filed the subject application supported by her affidavit stating that the court refused to allow her to put these questions pertaining to the reasons for original document/evidence being not the correct reasons, and which I am inclined to believe, more so because impugned order dismisses this application saying that the issue of cross-examination is a 'matter of law'. I fail to understand as to how cross-examination of a witness with respect to facts can be a 'matter of law'. Questions have necessarily to be put with respect to reasons CM(M) No.520/2013 Page 2 of 3 for non-filing of primary evidence/original documents by the other side when the first party/plaintiff does not lead original/primary evidence but leads secondary evidence.
4. In view of the above, impugned order when it dismisses the subject application under Section 151 of the Code of Civil Procedure, 1908 (CPC) is set aside and the petitioner/defendant is entitled to put questions with respect to foundational evidence which has been led by the respondent/plaintiff for bringing in secondary evidence. Petition is accordingly allowed and disposed of, leaving the parties to bear their own costs. PW-1 will be now recalled in terms of the present judgment so that the petitioner/defendant can cross-examine the said witness on the aspects as stated above.
VALMIKI J. MEHTA, J DECEMBER 01, 2014 Ne CM(M) No.520/2013 Page 3 of 3