Lalita Bhojwani vs Narender Kumar And Ors.
1993 Latest Caselaw 216 Del

JUDGMENT

P.N. Nag, J.

(1) This revision petition is filed against the order dated 28.3.1990 passed by Shri Kuldip Singh, Sub Judge First Class, Delhi whereby he has dismissed the application filed under Order 18 Rule 17-A of the Code of Civil Procedure for leading additional evidence.

(2) By way of additional evidence, the petitioner-plaintiff-applicant wanted to place on record a certified copy of the judgment and decree sheet in Roshan Lal Sood v. Narinder Kumar and Satinder Kumar (Suit No.37/81).

(3) Brief facts leading to the filing of the present revision petition are that the plaintiff-petitioner-applicant Shri Murlidhar Bhojwani filed a suit for declaration and injunction to the effect that the sale deed pertaining to the suit property executed by defendants 1 & 2 in favor of defendants 3 to 6 may be declared null and void and not binding on the petitioner and the plaintiff-petitioner may be declared as legal vendee of the property and further an order for specific performance be passed in his favor and against defendants 1 & 2.

(4) The parties have led evidence in the trial court.

(5) It appears that for another portion, viz. ground floor, out of the same property, one Roshan Lal Sood filed a suit (Suit No.37/81), who was alleged vendee, and the same had been decreed. An appeal there against has been filed in the High Court, which is still pending.

(6) In the suit No.18/81,out of which this revision petition has arisen, and the suit No.37/81 filed by Roshan Lal Sood, the defendants are the same whereas the plaintiffs are different.

(7) Both the suits appear to have been filed on the ground that defendants 1 & 2 being the owners of the property executed agreements of sale in favor of the plaintiffs, and also received part-payment as consideration. However, lateron, defendants 1 &2 sold the whole building, including the portions which they agreed to sell to the plaintiffs, to defendants 3 to 6. Since no sale deed was executed in favor of the plaintiffs, suits were filed.

(8) The copy order dated 3.9.1983 passed by Shri Gulab Tulsiani, Sub Judge 1st Class, Delhi in Suit No.37/81 sought to be produced by way of additional evidence has been placed on record of this court as annexure 'A' by counsel for the petitioner. The court has decreed that suit in favor of the plaintiff and against defendants 1 & 2 declaring that the sale deed pertaining to only the suit property in favor of defendants 3 to 6 is void and invalid and has cancelled the same. It has further been ordered that defendants 1 & 2 would execute the sale deed in favor of the plaintiff on deposit of Rs.6,500.00 within two months from the date of judgment.

(9) Counsel for the respondents has objected to the production of the order dated 3.9.1983 by way of additional evidence as the same was not relevant under the provisions of the Indian Evidence Act. 1872 (hereinafter referred to as the 'Act').

(10) The relevant provisions which refer to the relevancy of the judgment in the Act are Sections 40 to 43.

(11) Section 40 provides for the relevancy of the previous judgments when the question to be considered is whether such judgment would bar a second suit or trial by the court under the law.

(12) Section 41 refers to the relevancy of the judgments in probate matters etc.

(13) Section 42 refers to judgments if they relate to matters of public nature relevant to the inquiry.

(14) Section 43 provides that judgments, other than mentioned in Sections 40 to 42 , are irrelevant unless existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of the Act.

(15) Admittedly the judgment sought to be produced by way of additional evidence is judgment in personam and is not relevant under Sections 40 or 41 or 42, as earlier stated these sections provide for the relevancy of judgments in different situations and circumstances. It is not relevant even under Section 43 as the judgments, other than mentioned in Sections 40 to 42 , are irrelevant as the existence of such judgment, order or decree, is not a fact in issue. Therefore, it is not relevant under Section 43.

(16) Furthermore, the order in Suit No.37/81 sought to be produced by way of additional evidence is irrelevant as the decision in that case depended on different agreement to sell whereas in the present case there is another agreement to sell. In fact both the agreements to sell are entirely different.

(17) Therefore, in these circumstances, the judgment sought to be produced by way of additional evidence is not relevant.

(18) In this context I may refer to a decision in a case reported as State of Bihar and others v. Sri Radha Krishna Singh and others wherein in paragraphs 120 and 121 the Supreme Court has observed that it is well settled that judgments of courts are admissible in evidence under the provisions of Sections 40,41 and 42 of the Act. Section 43 clearly provides that those judgments which do not fall within the four corners of Sections 40 to 42 are inadmissible unless the existence of such judgment, order or decree is itself a fact in issue or a relevant fact under some other provisions of the Act. Some courts have used Section 13 to prove the admissibility of a judgment as coming under the provisions of Section 43 but where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. In other words, if a judgment is not admissible as not falling within the ambit of Sections 40 to 42 , it must fulfill the conditions of S.43 otherwise it cannot be relevant under Section 13 of the Act. The words "other provisions of this Act" cannot cover Section 13 because this section does not deal with judgments at all.

(19) In view of the above, there is no force in the revision petition, which is dismissed. In the circumstances, however, I make no order as to costs.