Vijay Kumar Goel vs Delhi Development Authority & ...
2009 Latest Caselaw 3300 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+              IA No.6254/2007 and IA No.6255/2007
                    in CS (OS) No.2537/2000

                                Date of decision : August 21, 2009

VIJAY KUMAR GOEL                  ..... PLAINTIFF
             Through : Mr. Rajinder Aggarwal,
                       Advocate

                                   Versus


DELHI DEVELOPMENT AUTHORITY & ANR.
                                 ..... DEFENDANTS
             Through : Mr. Gaurav Sarin, Advocate

%
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

      (1) Whether reporters of local paper may be
          allowed to see the judgment?

      (2) To be referred to the reporter or not?                    Yes

      (3) Whether the judgment should be reported
          in the Digest ?                                          Yes

                                   ORDER

ARUNA SURESH, J.

IA No.6254/2007 (Order 7 Rule 14 CPC) in CS (OS) No.2537/2000

1. Plaintiff has filed this application under Order 7 Rule

14 CPC seeking permission to file additional

documents as detailed in para 4 of the application.

Plaintiff has filed the present suit for recovery of

Rs.98,65,000/- against the defendants which is

pending adjudication and is at the stage of

recording of plaintiff's evidence.

2. It is contended by the plaintiff that he filed the

documents which were in his power and possession

and relevant for deciding the matter in issue.

However, some of the documents which were in

power and possession of the defendants were not

filed by the defendants despite receipt of notice

under Order 12 Rule 8 CPC dated 6.5.2006 served

upon the defendants. Plaintiff filed an application

under the Right to Information Act and was

successful in obtaining various documents and

letters exchanged between the parties. According

to the plaintiff these documents are relevant for the

purpose of fair and just disposal of the suit and they

could not be filed earlier because they were not in

his power and possession.

3. Defendants have opposed this application on the

grounds that these documents are not relevant and

they have been filed belatedly despite the fact that

plaintiff was given sufficient opportunity to file his

documents. Even cost was imposed upon the

plaintiff when he failed to file the documents within

the time frame fixed by the Court. According to the

defendants, the application is without merits and

should be dismissed.

4. Plaintiff's claim is based on execution of work

carried out by him for the development of land in

Sector 23, 24 and 25 of Rohini, Phase-III, S.H.:

construction of outfall drain from Sector 20 to 24 at

Rohini Line No.E to 71 by the defendants vide

agreement No.5/RPD-11/96-97. Plaintiff has sought

permission to file the following documents on the

record:

"1. Attested copies of noting sheet of tender 1 to 5 in the Office of Executive Engineer (P) 1 SE (P) R DDA.

2. Attested copy of justification statement along with analysis sheets 6 to 25.

3. Original copy of letter No. 92/PIO/RZ/RTI Act-05/525 dated 01.03.2007 sent by DDA to plaintiff.

4. Attested copy of letter No. CE(R) 4(2)98/AE(QC)DDA/1823 dated

04.08.1997 sent to various officers of DDA.

5. Attested copy of A.E. III/RPD-

11 letter no. F6(22) 96-97/AE III/RPDXI/13 dated 01.05.1997 sent to Ex. Engineer RPD-11 along with annexure page No.2 to 13.

6. Attested copy of A.E. III/RPD-

11 letter no. F6(22) 96-97/AE III/RPDXI/11 dated 27.03.1997 sent to the Ex. Engineer RPD-11 along with annexure Page No. 15 to 17.

7. Attested copy of completion certificate.

8. Attested copy of Ex. Engineer RPD-11 letter No.F50(439)A/RPD- 8/DDA/440 dated 30.04.1998 sent to Superintending Engineer, Civil Circle - 14, DDA along with page Nos. 20 to

25."

5. Documents at serial No.1 are not relevant as it is

not disputed that plaintiff was awarded work and

also that final payment was released to the plaintiff.

These noting sheets relate to the period before the

tender of the plaintiff was finalised and contract was

executed between him and the defendants for

development of land in Sector 23, 24 and 25 at

Rohini, Phase-III. These noting sheets have no

bearing on the claim of the plaintiff.

6. Document No. 2 is a justification statement which is

relevant for adjudication of the claim of the plaintiff.

7. Document No.3 is the reply of the DDA to the

application of the plaintiff filed under the Right to

Information of Act, 2005. This document is formal

in nature and enclosed with this are the other

documents which the plaintiff has sought to be

placed on record.

8. Document No.4 is not relevant as it contains

guidelines to be observed by various officers of the

department for testing of the joint of RCC pipes. It

has no bearing on the facts and circumstances of

this case.

9. Document No.5 is a letter in respect of revised

estimate of the work entrusted to the plaintiff. The

increase in amount is stated to be due to the

increase in length of the reach and due to

provisions of drawings of chamber and increase of

water level. This is relevant in respect of claim No.8

(claim for extra lift for filling excavated earth in

trenches beyond initial lift of 1.5 m-item no.2) claim

No.9 (claim for extra payment due to executing the

work of certain items in or under water or liquid

mud-item no.30 and claim No.10 (claim for

providing centering and shuttering at height of

more than 3.5m).

10. Document No.6 is with reference to the extra item

statements enclosed therewith. It is relevant in

respect of claim No.3 (claim for extra payment due

to execution of the items of centering, shuttering)

and claim No.4 (claim for providing and laying

cement concrete 1:2:4 for covering the joints of

precast RCC pipes including centering and

shuttering, in or under water or liquid mud) of the

plaintiff.

11. Document No.7 is the completion certificate. This

document is relevant to know if the work has been

completed to the satisfaction of the concerned

authority on the stipulated date of completion and

that no defects were apparent.

12. Document No.8 is relevant for adjudication of the

claims of the plaintiff as it has been written by

defendant No.2 wherein he has recommended

payment for almost all the claims. It clearly reveals

that both parties were ad idem on almost all the

issues and hence, it would help in the early disposal

of the suit.

13. Admittedly, the documents sought to be placed on

record were not filed by the plaintiff or relied upon

by him at the relevant stage. If the documents

were not in his power and possession, he was

required to file a list of reliance of documents, which

he did not comply with. Issues in this case were

framed on 6.10.2005. Plaintiff had filed affidavit in

evidence on 3.7.2006. Plaintiff sought information

under the RTI Act from defendants vide his letter

dated 6.3.2007 when the case was at the stage of

recording of plaintiff's evidence and his affidavit had

already been filed. The plaintiff alleges that he had

served a notice under Order 12 Rule 8 CPC on the

defendants through their counsel calling upon them

to file certain documents like original cement

register, agreement dated 25.1.1997 and original of

running accounts bill, production of all books,

papers, letters, copies of letters and other

documents which were in custody and possession of

the defendants and contained any entry, or

memorandum of minute relating to the matter in

question in the suit.

14. According to the plaintiff, this notice was never

replied nor were documents placed on record. This

notice is purported to have been sent on 6.5.2006.

Defendants deny having received any such notice.

It is pertinent that plaintiff has not placed on record

the copy of notice sent by him under Order 12 Rule

8 CPC calling upon the defendants to file the

documents as described in the alleged notice. In

the absence of copy of the notice, it cannot be

accepted that plaintiff had taken steps under Order

12 Rule 8 CPC calling upon the defendants to file

the documents detailed therein.

15. Plaintiff could have applied for information under

the RTI Act immediately thereafter instead of filing

the application on 6.3.2007. Plaintiff throughout

has been represented by a counsel and therefore it

cannot be believed that plaintiff came to know of his

rights under the RTI Act much later on and

immediately on coming to know of his rights he filed

the application before the defendant department for

getting the necessary information.

16. The plaintiff, therefore, has not been able to

successfully explain as to why he did not take

necessary steps at the earliest possible opportunity

to collect the copies of the documents from the

defendants which are the subject matter of this

application. Be that as it may, since some of the

documents sought to be placed on record are

relevant for the proper and final adjudication of the

case on merits, it is in the interest of justice that the

application is allowed specially when plaintiff has

not yet concluded his evidence and no prejudice is

likely to be caused to the defendants. Harassment

caused to the defendants by way of this application

can be duly compensated in terms of cost.

17. Hence, application is partly allowed. Plaintiff is

permitted to place on record the documents except

at serial No.1 and 4, subject to cost of Rs.10,000/- to

be deposited with Delhi High Court Mediation and

Conciliation Centre within one week.

IA No.6255/2007 (Section 151CPC) in CS (OS) No.2537/2000

In view of my orders on application under

Order 7 Rule 14 CPC, this application is allowed. Plaintiff

is permitted to file additional affidavit of the witness

whose affidavit has already been placed on record as

plaintiff himself has undertaken not to produce any other

witness except the one whose affidavit has already been

placed on record. Plaintiff shall file the additional

affidavit within four weeks with an advance copy to the

counsel for the defendants.

Application stands disposed of.

CS (OS) No.2537/2000

List before the regular Bench on 3rd

September, 2009 for further directions.

ARUNA SURESH (JUDGE) AUGUST 21, 2009 jk