On 21st September, a bench of Delhi High Court consisting of Justice Prathibha M. Singh held that that questions that are relevant to the issues raised ought to be permitted to be put to witnesses. Merely on the ground that the documents were not taken on record, the question could not have been disallowed.  The court also held that if Defendant had admitted the existence of the Sale Deeds, the Plaintiff may have even had the option of confronting the Sale Deeds to the witness and attempt to defeat his case that they were self-acquired properties.

Facts of the case:

The present petition had been filed challenging the impugned order dated 22nd August, 2019, passed by the ADJ-05, South West, Dwarka Courts, New Delhi by which the application seeking permission to lead rebuttal evidence, filed by the Plaintiff in the suit has been rejected by the Trial Court. The brief background is that a suit for partition came to be filed by the Plaintiff seeking partition of various properties, which according to the Plaintiff are joint family properties. In the said suit, the primary allegation of the Plaintiff was that there were various properties which were joint family properties deserving to be partitioned, and the second allegation was also that various other properties, which were joint family properties, were sold, and certain other properties were purchased by the predecessor in interest. Hence, according to the Plaintiff, even the said new properties were liable to be partitioned.

Contention of the petitioner:

Mr. Jay Savla, ld. Senior Counsel, made the following submissions:

  1. It was submitted that the Plaintiff did not have the Sale Deeds and the Bank Statements in his possession at the time when the suit was filed or when evidence in the affirmative was led. Accordingly, he stated that under Order XVIII Rule 3 of CPC, when there are several issues which were framed and the onus is on the Defendant qua some of the issues, the Plaintiff would have the right to lead rebuttal evidence.
  2. It was further submitted that the Bank Statements would also be relevant to prove that the consideration that was received from sale of HUF properties, was utilised for the purpose of purchase of the properties by the Defendant, which are claimed to be self-acquired.
  3. He, accordingly, prayed that in terms of the liberty granted by the Supreme Court, his client ought to be permitted to prove the Sale Deeds as also the Bank Statements on record, in rebuttal evidence.

Contention of the respondent:

The learned counsel appearing for the respondent contended the following:

  1. It was submitted that the Plaintiff has had an opportunity to show that the properties in question are joint family properties. Since the Plaintiff has availed of that opportunity, the opportunity to place rebuttal evidence ought not to be granted.
  2. It was further submitted that the question as to whether the said documents which are being pressed can or cannot be filed, has attained finality in view of the earlier round of orders which have been passed in the application under Order VII Rule 14 of CPC. Thus, the same evidence cannot now be surreptitiously sought to be introduced by way of rebuttal evidence under order XVIII Rule 3.
  3. It counsel argued that the suit had been filed in 1992, and has been going on for almost 30 years due to the delays which are being caused by the Plaintiff himself.

Observation and Judgment of the court:

The following observation has been made by the hon’ble bench of the court:

  1. The Plaintiff may be entitled to show to the Court that the said properties are not self-acquired, and therefore, in that sense, the Plaintiff could be given a right to place the documents it seeks to place on record and prove the same.
  2. A perusal of the above cross examination clearly showed that the Plaintiff made an attempt to cross examine the Defendant, in respect of the Sale Deeds of 1986. However, the question was disallowed by the trial court.
  3. If the Defendant had admitted the existence of the Sale Deeds, the Plaintiff may have even had the option of confronting the Sale Deeds to the witness and attempt to defeat his case that they were self-acquired properties.

Thus, under the above circumstances, the court was of the opinion that the entire controversy could be cut short by giving one opportunity to the Plaintiff to put the questions related to the sale deeds and bank statements, to DW1 - Shri Naresh Kumar, who may be recalled as a witness.

Accordingly, Naresh Kumar was called upon to appear before the trial court and the Plaintiff would be entitled to cross examine DW1, in respect of the Sale Deeds of 1986/1987 and the bank statements.

Thus, the petition was disposed off.

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