Anil Kapoor vs S.R.Sharma Thr. Lrs.
2009 Latest Caselaw 2251 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  FAO (OS) No. 269/2005


                                           Date of Decision: May 25, 2009

ANIL KAPOOR                                             .......Appellant

                               Through :    Mr. V.K. Makhija, Sr. Adv.
                                            with Ms. Vandana Khurana,
                                            Adv. for the appellant.

                                 Versus

S.R. SHARMA THR. LRS                                    .......Respondents

                               Through :    Mr. J.K. Seth, Sr. Adv. with
                                            Mr. Bharat Bhushan Bhatia
                                            and Ms. Saloni, Advs. for
                                            the respondents.


CORAM :

       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

       HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.     Whether Reporters of local papers may be allowed to see the
       judgment?

2.     To be referred to the Reporter or not?

3.     Whether the judgment should be reported in the Digest?


SANJAY KISHAN KAUL, J. (ORAL)

1. Admit.

2. Learned counsel for the respondents accepts notice.

3. At request of learned counsel for the parties, the appeal is

taken up for final disposal.

4. The appellant filed a suit for specific performance of an

agreement to sell in respect of property bearing No. E-386, Greater

Kailash-I, New Delhi. The respondent entered appearance and

defended the suit. On the completion of pleadings of the parties,

issues were framed on 15.09.1998 as under:

(i) Whether Shri S.R. Sharma, the defendant

received Rs.4,00,000/- by way of friendly

loan and not in pursuance to the agreements

-Annexures A & B as alleged by him?

(ii) Whether the defendant had not entered into

agreements to sell as alleged by the plaintiff?

(iii) Whether the plaintiff was always ready and

willing to perform his part of the agreement?

(iv) Relief.

5. It appears that thereafter the respondent passed away and his

legal heirs were brought on record. The trial, however, did not

commence for one reason or the other. At the stage when the trial

was to finally commence, the appellant filed an application being IA

No.5051/2005 seeking leave of the Court to file additional

documents under Order XIII Rule 2 of the Code of Civil Procedure,

1908 (hereinafter referred to as „the said Code‟). The appellant

claimed that these documents were sought to be produced for

purposes of establishing that the appellant was ready, willing and

able to purchase the suit property and in this behalf, the Bank

passbook of Central Bank of India as well as documents registered

with the sub-Registrar were sought to be produced. This application

was opposed by the respondents and in terms of the impugned

order dated 29.07.2005, the application has been dismissed.

6. The impugned order reads as under:

"This an application under Order 13 Rule 2 of the CPC.

Apart from the fact that this provision has been deleted from the CPC, there is absolutely no reason, explanation or any suggestion given why these documents could not have been produced at a much earlier stage and have been sought to be produced only a couple of days before recording of evidence. In the absence of any explanation, I do not find any merit in the application. The same is dismissed. The documents sought to be produced by this application cannot be now taken into consideration for the purpose of the case."

7. Learned counsel for the appellant rightly points out that the

authority of the Court to bring on record such documents exists

even after the amendment of the said Code in view of the provisions

of Order VII Rule 14 of the said Code. The controversy thus is

whether there was sufficient cause shown and it is the submission of

the learned counsel for the respondents that mere inadvertence

could not be a ground to bring on record the documents belatedly at

this stage. Learned counsel in this behalf has referred to the

observations in Madan Lal v. Shyam Lal AIR 2002 SC 100 though

it is conceded that in that case trial had already begun.

8. We are of the considered view that since trial was yet to

commence, these documents could have been brought on record

specially as they came from some unimpeachable source and we

find them germane to the controversy in question. The respondents

could have been compensated with costs.

9. Learned counsel for the respondents, however, points out that

it is not within the purview of this Court to entertain the appeal as

no appeal is maintainable against discretionary order declining

documents to be taken on record belatedly.

10. Learned counsel for the appellant refers to the Full Bench

judgment of this Court in Begum Aftab Zamani v. Shri Lal Chand

Khanna AIR 1969 Delhi 85 to the following effect:

"It is not possible to lay down any definite rule which would meet the requirements of all cases and all that we may say is that in determining whether an order or decision constitutes a "judgment" or not the Court has to take into consideration the nature of the order and its effect upon the suit or the civil proceeding in which it is made. Each case would thus depend on its own peculiar facts and circumstances.

We have arrived at this conclusion on the plain reading of section 10 of the Act in the background of the statutory scheme. In our view, the drafts-man could neither have intended to restrict the right of appeal only to final judgments disposing of the entire suit, nor could he have intended it to extend to all orders made during the course of trial, however ministerial or procedural in their nature or ineffectual on the rights on the parties."

11. Learned counsel for the respondents on the other hand

submits that the subsequent judgment of the Supreme Court in

Shah Babulal Khimji v. Jayaben D Kania AIR 1981 SC 1786

clearly specifies that no such appeal is maintainable against an

order declining documents to be taken on record. Learned counsel

in this behalf has referred to the observations made in para 114,

115, 116 and 119 which are reproduced as under:

"114. In the course of the trial, the trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing to summon an additional witness or documents, an order refusing to condone the delay in filing documents after the first date of hearing, an order of costs, to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the trial Judge.

115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.

116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the Letters Patent. Suppose the trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases although the order passed by the trial Judge is purely discretionary and interlocutory, it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore though interlocutory in

nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the Letters Patent. This is what was held by this Court in Shanti Kumar‟s case (AIR 1974 SC 1719) (supra), ........"

xxx xxx xxx

119. Apart from the tests laid down by Sir White, C.J., the following considerations must prevail with the court:

(1) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.

(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.

(3) The tests laid down by Sir While, C.J. as also by Sir Couch, C.J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind."

12. Learned counsel has also referred to the Division Bench

judgment of this Court in Jai Prakash Goel v. O.P. Goel & Ors

2006 (88) DRJ 182 (DB) wherein the scope of an appeal under

Section 10(1) of the Delhi High Court Act, 1966 read with Clause 15

of the Letters Patent has been examined and following the

judgment in Shah Babu Lal Khimji case (supra), it has been held

that an order which is not appealable under Order XLIII Rule 1 of

the said Code may be appealable under the aforesaid provisions

provided it possesses the characteristics and trappings of finality.

13. In view of the position set out aforesaid we are of the view

that the matter is no more res integra in view of the judgment in

Shah Babu Lal Khimji case (supra) where one of the illustrations

given of an interlocutory order is a decision declining leave to

permit additional documents to be brought on record belatedly. No

doubt, it has been observed that there is no exhaustive list possible

of all eventualities but illustratively some orders have been given

from which appeal would lie though they are interlocutory while

illustrations have been given of other orders where no such appeal

would lie. In Begum Aftab Zamani case (supra) also the Full Bench

only emphasized that it was not possible to make a list of the entire

set of orders which constitute a "judgment" and thus each case

would depend on its own peculiar facts and circumstances. We have

thus no option but to hold that the appeal is not maintainable but

naturally if the appellant fails in the suit, it is always open to him to

raise all pleas as are available therein including the matter in

question in the present appeal as observed by the Supreme Court in

Shah Babu Lal Khimji case (supra) in para 114.

14. The appeal is accordingly dismissed as not maintainable.

CM No. 12558/2005 (Stay) in FAO (OS) No. 269/2005

Dismissed.

SANJAY KISHAN KAUL, J.

MAY 25, 2009 SUDERSHAN KUMAR MISRA, J.

rd