Sh. Anisuddin And Anr. vs Mrs. Vimla Sethi And Anr.
2002 Latest Caselaw 1274 Del

JUDGMENT

Mukundakam Sharma, J.

1. This order shall dispose of the application filed by the plaintiffs under Order xviii Rule 17-A read with Order 13 Rule 2 of the Code of Civil Procedure.

2. The plaintiffs filed the above-mentioned suit seeking for a decree in favor of the plaintiffs and against the defendants declaring that the plaintiffs are the absolute owners and in possession of the suit property and also for a decree for specific performance of the agreements to sell dated 23.4.1981/5.5.1981 directing the defendant No. 1 to execute the sale deed of the suit property in favor of the plaintiffs. The suit was filed on 22.1.1992 and the issues in the suit were framed on 7.1.1994. During the course of trial, evidence of the parties have been recorded and on closure of the same, the matter was directed to be listed before the court for appropriate orders. On 4.9.2001, when the matter was placed before the court, pursuant to the earlier orders, it was contended by the counsel appearing for the plaintiffs that he would be filing an appropriate application seeking permission to prove the letter pertaining to delivery of possession. Pursuant to the said statement, the aforesaid application was filed in this court praying for taking on record the possession letter dt. 20.4.1982. It is stated in the application that the said possession letter is dated 20.4.1982 and that the said document came to the knowledge and custody of the plaintiffs only on 2.3.2000.

3. The contesting defendant No. 1 closed her evidence on 9.5.96,while the plaintiffs closed their evidence on 17.1.2000. An application was filed in this court on 2.3.2000, which was registered as I.A.No. 2293/2000 wherein it was stated by the plaintiffs that the original letters dt. 31.8.84, 30.3.87 and 29.3.90 written by Riazuddin, reference whereof was made out in the plaint, were traced out only on 2.3.2000 and, therefore, the contents of the said letters could not be put to Sh. Aneesudin, PW-2 and Sh. Riazuddin, PW-3 while examining them as witnesses and, therefore, in the said application it was prayed that the said original letters may be allowed to be taken on record and Sh. Aneesudin, PW-2, Sh. Riazuddin, PW-3 and Sh. Khalid Riaz, plaintiff No. 2 be permitted to be re-examined to prove the said letters.

4. The aforesaid application was opposed by the defendant No. 1. However, by order dt. 6.11.2000, this court allowed the application on the ground that photostat copies of the said letters were filed along with the suit and at the time of completion of admission/denial, on 8.12.93 the original letters were also shown to the counsel for the defendant No. 1. Considering the said fact and also noticing the plea raised in the written statement by the defendant No. 1, issues 5 & 7, the original letters in question, which were alleged to have been traced out by the plaintiff on 2.3.2000 were allowed to be taken on record and prove in the statements of PW-2, PW-3 and Sh. Khalid Riaz, plaintiff No. 2, subject to payment of costs and allowing the defendant No. 1 to lead evidence in rebuttal qua the aforesaid letters.

5. When the aforesaid application was filed on 2.3.2000 by the plaintiffs, the alleged possession letter dated 20.4.82 was also in the knowledge and custody of the plaintiffs. Still no steps were taken by the plaintiffs to place the said document on record and/or to get the said document proved through PW-1. It is an admitted position on the part of the plaintiffs that the plaintiffs had the knowledge and custody of the said documents on 2.3.2000 and the said document is sought to be introduced by filing the aforesaid application, only on 11.9.2001 after evidence of the parties have been closed.

6. There is another relevant aspect which requires consideration for the purpose of determining the present application. Defendant No. 1 filed an application in this court on 11.5.2000 under Order 13 Rule 2 & Order 18 Rule 17-A of the Code of Civil Procedure praying that she may be allowed to place on record copy of the possession letter dt. 20.4.82 and also to allow her to call the President of the New Friends Coop. House Building Society Ltd. along with the records of Plot No. A-226, New Friends Colony, New Delhi to prove the said possession letter. In the said application the defendant No. 1 referred to the stand of the plaintiffs in the witness box that the possession of the plot in question was given to them by the New Friends Coop. House Building Society Ltd. after finalisation of the alleged deal with the defendant No. 1. It was stated in the said application that the aforesaid stand taken by the plaintiffs is totally false and that, in fact, the Society never handed over possession of the aforesaid plot to defendant No. 1 and, therefore, the defendant No. 1 desired to summon the records of the New Friends Coop. House Building Society Ltd. to prove as to whom the possession of the plot in question was given by the Society. Defendant No. 1 also sought leave of this court to file copy of the possession letter dt. 20.4.82. which was obtained by her from the office of the Society, which was furnished to her on 19.1.2000.

7. The said application was, however, opposed by the plaintiffs and it was stated in the reply filed by the plaintiffs to the said application that in the statement dated 17.1.2000, made by the plaintiff No. 1, Sh. Anisuddin, appearing as DW-2/3, it was wrongly stated that possession of the aforesaid plot was given by the New Friends Coop. House Building Society Limited after finalisation of the deed, which was an inadvertent and bonafide mistake and that the said mistake occurred because Sh. Anisuddin was not directly dealing with the defendant but the negotiations and dealings were carried on between Sh. Mohd. Zaki, DW-1 with Smt. Vimla Sethi, PW-1 and Smt. Vimla Sethi had appointed Sh. Riazuddin, PW-3 as her Attorney to complete the transaction on her behalf. It was also stated that delivery of possession was mentioned in the Agreement of Sale dated 23.4.1981 and, therefore, the possession was taken by the plaintiffs from Smt. Vimla Sethi through Sh. Riazuddin, attorney of the defendant No. 1.

It was further contended by the plaintiffs in their reply to the aforesaid application that the fact whether the possession was taken from or given by the Society or was taken from the vendor through Sh. Riazuddin, her attorney, is immaterial for the decision of the aforesaid suit. In view of the aforesaid stand taken in the reply by the plaintiffs, the application registered as I.A.No. 4306/2000 was not pressed by the defendant No. 1 and the same was dismissed as not pressed, by order dt. 23.4.2001. After the said order was passed, three documents, which were permitted to be proved by the plaintiffs in terms of the order dt. 6.11.2000, were allowed to be taken on record by re-examining the witnesses and thereafter the evidence was closed and the suit was directed to be listed for further orders.

8. It was contended on behalf of defendant No. 1 that in view of the aforesaid stand of the plaintiffs in their reply and also due to total negligence on the part of the plaintiffs, the aforesaid document sought to be introduced now in evidence, cannot be taken on record and, therefore, the application filed by the plaintiffs is required to be dismissed.

9. A careful perusal of the provisions of Order 18 Rule 17-A of the Code of Civil Procedure would make it crystal clear that the party seeking to introduce such evidence must satisfy the Court that after exercising due diligence, some evidence was not within his knowledge and consequently he could not produce the said evidence with due diligence when the said party was leading the evidence. The facts of the present case, which are delineated above, would indicate that the application filed by the defendants seeking to produce the aforesaid possession letter, issued by the New Friends Coop. House Building Society Ltd. was got disposed of by the plaintiffs on making a statement that the said fact was not at all relevant and material for the purpose of deciding the present case. Even thereafter, the plaintiffs sought for and got three letters introduced into the evidence by filing a fresh application, which was considered and allowed in spite of the fact that the same were not put to the witnesses when they were being examined. Admittedly, on the date when the said application was filed, the alleged possession letter, which is sought to be introduced now, was in the knowledge and custody of the plaintiffs but still no mention was made about the said alleged possession letter, in the said application and even thereafter during the pendency of the said application no permission was sought for introducing the said letter. Re-examination of the witnesses were thereafter completed and even thereafter no steps were taken by the plaintiffs either to inform this court that such a letter exists and is in the custody and possession of the plaintiffs, till the application was filed on 11.9.2001. Negligence on the part of the plaintiffs is apparent on the face of the records. There is no due diligence on the part of the plaintiffs rather there is total negligence on their part. Even the conduct of the plaintiffs speaks volume as at one stage the plaintiffs' definite stand was that the aforesaid possession letter is immaterial and irrelevant. The plaintiffs proceeded with the suit even after 2.3.2000 without even mentioning that such a letter is in the custody and possession of the plaintiffs. Since the plaintiffs could have produced the alleged letter at the time when the earlier application was filed and they did not produce the same, it would be improper to allow the plaintiffs to get the benefit of the provisions of Order 18 Rule 17-A of the Code of Civil Procedure. The aforesaid provisions cannot be invoked by the plaintiffs because of their negligence and also because of their conduct. Therefore, there is no reasonable ground to allow the present application. The application is held to be without merit and is dismissed accordingly.