Rame & Ors. vs Dhanpal
2009 Latest Caselaw 2488 Del

*          HIGH COURT OF DELHI: NEW DELHI

+                      IA No. 14657/2008 in CS (OS) No.2430/2000

%                      Judgment reserved on:          3rd July, 209

                       Judgment pronounced on:           6th July , 2009

Rame & Ors.                                           ..... Plaintiffs
        Through: Mr. R.M. Sinha, Adv.

                       Versus

Dhanpal                                               ..... Defendant
           Through: Mr. Santosh Kumar, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                 No

2. To be referred to Reporter or not?                              No

3. Whether the judgment should be reported                         No
   in the Digest?

MANMOHAN SINGH, J.

1. By this order, I shall dispose of application filed by the

plaintiff being IA No.14657/2008 under Order XVI Rule 1 (3) and 6 and

Order XVIII Rule 3, 4 and 17 read with Section 151 CPC.

2. The plaintiff filed the present suit for possession and

damages with the prayer that a decree for possession with respect to

the property measuring 4 bighas and 12 biswas, Khasra No.42/8

situated in Village Karawal Nagar, Delhi be passed.

3. The suit was filed on 30th October, 2000 and Issues were

framed on 24th April, 2007. The plaintiff concluded his evidence on

17th July, 2008. The defendant has produced his evidence by way of

affidavit of Mr. Bhim Sain filed on 16 th October, 2008. The plaintiff

filed the present application on 25 th November, 2008 with the following

prayer :

"(i) To place on record the certified copy of the order dated 24.4.1972, a copy of which is already placed on record and this order also found reference in all previous litigation between the parties right from 1970 including in RSA No.181/81 decided by this Hon'ble Court the certified copy of which may also be allowed to be placed on record.

(ii) The plaintiffs may also be allowed to call any office bearer from the office of the revenue, assist to prove the certified copy of the above said order dated 24.4.72 and to prove the other revenue record already placed on record.

(iii) The plaintiffs may also be allowed to have a direction to the Patwari/Tehsildar called by the defendants herein to bring entire revenue record with regard to the suit property and the evidence may be read for both the plaintiffs and defendants, so that the entire dispute among the parties may be set as rest and this Hon'ble Court may effectually and completely adjudicate upon the entire controversy amongst the party.

(iv) Such other or further order which this Hon'ble Court may deems fit and proper under the facts and circumstances stated above may also be passed in favour of the applicant and against the defendants, in the interest of justice."

4. As far as the prayer (i) is concerned, it is not in dispute that

the plaintiff has filed copies of the order dated 24 th April, 1972 passed

by the Revenue Officer, Delhi and order dated 8 th September, 2000

passed by this Court in RSA No.181/81 alongwith the suit. The

certified copies of these two orders have been filed by the plaintiff

alongwith list of documents.

5. Learned counsel for the defendant has strongly opposed the

present application. It is argued by the learned counsel for the

defendant that the present application is not bonafide and is frivolous

due to various reasons. As far as order dated 8 th September, 2000 is

concerned, the defendant stated that he has no objection if the certified

copies of the said orders are taken on record. As regards the certified

copy of order dated 24th April, 1972 is concerned, the said prayer has

been opposed by learned counsel for the defendant. He submits that

the present application is an abuse of the process of the Court and that

it is not filed with bonafide intention as the said order dated 24th April,

1972 is not even the subject matter of the present suit and in case the

certified copies of the said orders are allowed to be proved by the

plaintiff, the scope of the suit would be enlarge and it would also

change the nature of controversy raised between the parties.

6. Learned counsel for the defendant has also referred the

order dated 21st July, 2006 passed by this Court in the application for

amendment of the plaint filed by the plaintiff being IA No.7167/2005

whereby the plaintiff's application was dismissed by this Court. In the

said application, the plaintiff earlier tried to amend the plaint by

incorporating the said fact in the plaint which was rejected by the

said order. The operative paras 8 and 12 of the said order are read as

under :

"8. In this background, the plaintiff has filed the present application on 4th September, 2005 asserting that the issue relating to the validity of the agreement to sell was not challenged in the present suit prior hitherto as the same was the subject matter of the special leave petition. The plaintiffs have contended that the issues have been left open by the judgment dated 21st July, 2005 passed by the Apex Court and therefore, it has sought leave to amend the suit to incorporate a plea that an order was passed by the Assistant Collector

(Revenue) on the 24th April, 1972 holding that Biru, the predecessor-in-interest of the plaintiffs, did not possess the land and that the possession on the land was kept as before in the revenue records. The plaintiffs have further sought amendment of the prayer clause seeking to incorporate a prayer for a decree for declaration holding the agreement to sell dated 8th June, 1970 produced by the defendant be declared as null and void on the ground that the same has been manufactured, manipulated and fabricated document.

12. So far as the purported order dated 24 th April, 1972 of the revenue officer is concerned, no such order has ever been pleaded by the plaintiffs or the predecessor-in- interest in any of the proceedings. No such order was ever relied upon by the parties before any court prior thereto. The defendants have submitted that if such order had existed, it would have been produced. Such an order has been set up in order to defeat the plea of the defendants with regard to their having been put in possession by the predecessor-in- interest of the plaintiffs. There is not an iota of explanation as to why, if such order dated 24th April, 1972 actually existed, it had not been averred or produced for all these years. Certainly, the order would have had material bearing on the adjudication in the earlier litigation. There is, therefore, force in the submission of the defendants that the application is mala fide."

7. He has further argued that the plaintiff has failed to achieve

his object directly and is therefore, now trying to achieve the same

indirectly.

8. I have gone through the pleading of the matter as well as the

order dated 21st July, 2006. It appears that there is no plea in the plaint

pertaining to the order dated 24th April, 1972. The plaintiffs prayer for

amendment by incorporating the said facts pertaining to the order dated

24th April, 1972 has already been disallowed by this Court. No doubt

alongwith the suit, the plaintiff filed copies of the said orders and later

on filed the certified copy alongwith the present application. It appears

that the plaintiff now wishes to prove his case on the basis of the order

dated 24th April, 1972. In case the plaintiff is allowed to prove the said

certified copies, it would definitely enlarage the scope of the matter

and it will also change the nature of the suit. Moreover, the order dated

21st July, 2006 has already become final between the parties as no

appeal appears to have been filed against the said order.

9. As regards the other prayers, since the plaintiff has already

closed his evidence, the matter is at the stage of defendant's evidence.

The plaintiff cannot ask the defendant to summon the record from the

witness as per his choice after he has closed his evidence. Further it

appears from the record that alongwith the evidence, the defendant has

filed the application for summoning of the witness including the

Patwari from the Village Karawal Nagar Tehsil to bring the record

pertaining to the relevant file.

10. In the present application as per the prayer, it appears that

the plaintiff wishes to call another office bearer from the office of

Revenue to prove certified copy of the said order dated 24th April, 1972

and to prove the other revenue record which is already placed on record.

It is also prayed in the application that the entire revenue record of the

suit property may be read for both the plaintiff and defendant. It

appears that the prayer made in this application is very wide as the

plaintiff not merely wants to produce the two certified copies but is

also trying to summon the witness to prove the certified copy dated 24th

April, 1972 and other revenue record as per prayer (ii) and (iii) of the

application. Since the evidence of the plaintiff has already been closed

and the said order has already been dealt with by this Court vide order

dated 21st July, 2006 thereby rejecting the application of the plaintiff,

the application is highly misconceived and is not maintainable and the

same is dismissed with cost of Rs.10,000/-.

11. List the matter before the Joint Registrar on 13 th July, 2009

for cross examination of the defendant witness Mr. Bhim Sain.

MANMOHAN SINGH, J JULY 06, 2009 sa