Sh. Rame & Others vs Mr. Dhanpal & Others
2009 Latest Caselaw 4507 Del

*                   HIGH COURT OF DELHI : NEW DELHI

                 Judgment reserved on : October 29, 2009
                Judgment delivered on : November 06, 2009

+                          F.A.O. (OS) No. 335/2009 &
                              C.M. No. 11122/2009

%       Sh. Rame & Others                    ...  Appellants/Plaintiffs
                  Through:        Mr. R.M. Sinha with Ms. Namita Sinha,
                                  Advocates.

                                    versus

        Mr. Dhanpal & Others          ... Respondents
                  Through: Mr. Santosh Kumar, Advocate.

CORAM:

HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SUNIL GAUR

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

2.      To be referred to Reporter or not?

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

SUNIL GAUR, J.

1. The litigating parties are the successors of Birju and Behu, who

had in earlier round of litigation gone up to the Apex Court in a suit for

permanent injunction in respect of the suit property. Now, Appellants

in this round of litigation have sought possession of the suit property,

i.e., 4 Bighas and 12 Biswas of agricultural land in Khasra No.42/8, in

Village Karawal Nagar, Delhi. At the stage of evidence of

Respondents/Defendants, Appellants/Plaintiffs had sought to place

F.A.O. (OS) No. 335/2009 Page 1 on record certified copy of order of April 24, 1972, passed by the

Assistant Collector (Revenue), holding that Birju, the predecessor-in-

interest of the Plaintiffs, did not possess the suit land and that the

possession of the suit land was kept as before in the Revenue

Records. It is not in dispute that copy of the aforesaid order is already

on record. Another document sought to be placed on record by the

Appellants/Plaintiffs is certified copy of order of September 08, 2000,

passed in R.S.A. No.181/1981, i.e., of the earlier litigation.

Appellants/Plaintiffs had also sought permission to lead the evidence

to prove these two documents, which has been declined by the

learned Single Judge vide impugned order of July 06, 2009.

2. Notice of this appeal was confined to the question of taking on

record the certified copy of the order of September 08, 2000 in R.S.A.

No. 181/1981 and certified copy of order of April 24, 1972 of Assistant

Collector (hereinafter referred to as order the Revenue Officer).

3. Though, there is no opposition from the side of the

Respondents to take on record certified copy of the order of

September 08, 2000 of this court in earlier round of litigation, i.e., in

R.S.A. No. 181/1981, but the prayer of the Appellants to take on

record a certified copy of the order of the Revenue Officer of April 24,

1972, is vehemently opposed by learned counsel for the

Respondents.

F.A.O. (OS) No. 335/2009 Page 2

4. After having heard learned counsel for the parties and upon

perusal of the record of this case, we find that the opposition of the

Respondents to taking on record the certified copy of order of April

24, 1972 of the Revenue Officer is primarily on the ground that the

prayer for amendment of the plaint in respect of these document

already stands declined in the present proceedings. This fact has

also been noticed by the learned Single Judge in the impugned order

and it is weighed heavily with him to refuse permission to the

Appellants/Plaintiffs to place on record certified copy of order of April

24, 1972. During the course of the arguments, learned counsel for

Respondents had referred to the various provisions of Code of Civil

Procedure with specific reference to Order XVI and Order XVIII of

Code of Civil Procedure and had pointed out that the certified copy of

the order of the Revenue Officer sought to be placed on record is

beyond pleadings and there is delay of fifteen months to place these

documents on record.

5. Both the sides had made their respective submissions

regarding the merits of this order of the Revenue Officer, which we

are not inclined to go into, for the reason that the appropriate stage to

judge the merits the documents produced is after the evidence is led

by the parties in the suit proceedings. To do so now, would be pre-

mature and is uncalled for. Reliance placed by counsel for the

Appellants upon a decision of the Apex Court in "Ashok Sharma vs.

F.A.O. (OS) No. 335/2009 Page 3 Ram Adhar Sharma", 2009 IV AD (SC) 65, is misplaced as we find

that this was a case where a witness was allowed to place on record

documents during the course of his deposition.

6. What has weighed with the learned Single Judge in disallowing

application of the Appellants to place on record certified copy of order

of the Revenue Officer of April 24, 1972, is contained in para 10 of

the impugned order and it reads as under:-

"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 costs of Rs.10,000/-"

7. Where is the need for the Appellants to call a witness to prove

the order of April 24, 1972 of the Revenue Officer, when it stands

noted in the impugned order that the Respondents/Defendants have F.A.O. (OS) No. 335/2009 Page 4 filed an application for summoning witness from the Revenue Office

to produce the record for the suit land in question. In this regard, what

is noted in the impugned order is as under:-

"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."

8. We are of the considered view that since the witness of the

Respondents/Defendants from the Revenue Department is to appear

with the record pertaining to the suit land, therefore,

Appellants/Plaintiffs would be well within their rights to confront the

said witness with the order of April 24, 1972 of the Revenue Officer.

Order XIII Rule 3 of the Code of Civil Procedure permits the

Plaintiffs/Appellants to do so. In this view of the matter, without

commenting upon the evidentiary value of this document, i.e., order

of April 24, 1972 of the Revenue Officer or about its admissibility, it

would be indeed in the interest of justice to permit the

Appellants/Plaintiffs to place on record certified copy of this order so

that they are able to confront the witness of the

Respondents/Defendants sought to be summoned from the Revenue

Department. The question whether the order of April 24, 1972 of the

Revenue Officer is beyond pleadings or not, is left open to be decided

in the suit proceedings at an appropriate stage. Thus, we refrain from

commenting upon the validity of the document in question, i.e., on F.A.O. (OS) No. 335/2009 Page 5 order of April 24, 1972 of the Revenue Officer. It is hereby clarified

that we should not be understood to have found these documents

relevant or eligible for consideration, since they appear not to have

been alluded to in the pleadings.

9. In view of the aforesaid, impugned order is set aside and

application of the Appellants/Plaintiffs is allowed to the extent of

permitting them to place on record certified copy of order of April 24,

1972 of the Revenue Officer and to place on record certified copy of

order of September 08, 2000, passed in R.S.A. No.181/1981. This, of

course, would be subject to costs of Rs.10,000/-.

10. This appeal is disposed of accordingly and the pending

application is also disposed of as infructuous.

Sunil Gaur, J.

Vikramajit Sen, J.

November 06, 2009
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F.A.O. (OS) No. 335/2009                                               Page 6