Ramesh Kumar Arora vs Bhola Nath & Ors.
2011 Latest Caselaw 1819 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI



+                     CS(OS) NO.1080/2004


                                     Date of Decision : 29.3.2011


RAMESH KUMAR ARORA                                ...... Plaintiff
                                Through:    Mr.Sanjeev  Sachdeva,
                                            Adv.

                                Versus

BHOLA NATH & ORS.                                ......    Defendants
                                Through:    Mr.Rakesh       Kumar
                                            Khanna, Sr.Adv. with
                                            Mr.Rakesh Malhotra and
                                            Ms.Seema Rao, Advs.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI


1.     Whether Reporters of local papers may be
       allowed to see the judgment?                  NO
2.     To be referred to the Reporter or not ?       YES
3.     Whether the judgment should be reported
       in the Digest ?                               YES

V.K. SHALI, J. (Oral)

IA No. 2142/2011

1. This is an application filed by the defendant under Section

151 seeking the expunging of certain paragraphs filed in

the affidavit by way of evidence on the ground that the

same are beyond pleadings and also seeking a direction

that the additional documents which have been filed along

with the affidavit may not be taken on record.

2. Briefly stated the facts of the case are that the plaintiff filed

the present suit for partition in the year 2004. The suit

was contested by the defendants and they filed their

written statement.

3. On the pleadings of the parties, the following issues were

framed on 15.1.2009, which read as under:-

"(i) Whether any HUF business of Sh.Shori Lal existed and if so, whether the plaintiff was a co- parcener? OPP

(ii) Whether HUF of late Shori Lal existed and came to an end in 1966-67 by partition? OPP

(iii) Whether business in the name of Punjab Glass & Plywood Co. was HUF business of defendant no.1?

(iv) Whether the property no.1050, Patel Gali no.1 and 2, Gandhi Nagar is an HUF property? OPP

(v) Whether the plaintiff is entitled to any share in the suit property, if so, what share? OPP

(vi) Whether the plaintiff is entitled to a decree of partition of property by metes and bounds or by any other method? OPP

(vii) Whether the suit has been filed within the period of limitation in view of the pleadings of the plaintiff? OPP

(viii) Whether the suit has been properly valued for purpose of Court fees and jurisdiction and whether the appropriate Court fees has been affixed? OPP

(ix) Whether the suit is not maintainable for want of Court fees? OPP

(x) Relief. "

4. It is stated that in the year 2008, the plaintiff had filed an

application seeking amendment of the plaint which was

allowed and thereafter the written statement to the

amended plaint was filed by the defendants and the Court

was pleased to appoint Mr.G.P.Thareja, as a Local

Commissioner for the purpose of recording evidence. It is

alleged in the application that the plaintiff has now filed an

affidavit by way of evidence which contains the averments

which are beyond pleadings and therefore, the present

application filed by the defendants seeks deletion of the

paragraphs which are stated to be beyond pleadings. It

may be pertinent to reproduce the paragraph 8 of the

present application, which reads as under :-

"8) That the contents of affidavit which are beyond pleading has been reproduced for the kind convenience of this Hon‟ble Court and same is as are as:-

„In para -3. I state that my grandfather was carrying on the family business of Halwai in Shalmi Darwaja (Jori More), Lahore, Pakistan and he had a flourishing business and from the said business he had various movable and immovable properties.

In para 4. During the partition in 1947, my grandfather had left behind various movable and immovable properties in Pakistan some of them being two shops, three houses, jewellery, household items etc.

In para 6. Out of the said amount of `5,000/-, my father had purchased a freehold plot bearing No.IX/1050, Patel Gali No.1- 2, South Gandhi Nagar, Delhi- 110031.

In para 9. The said business continued till 1974. Letter

dated 09.6.1960 issued by the Directorate of Food and Civil Supplies to M/s Shori Lal Bhola Nath may be exhibited as Exhibit PW-1/1. Certificate of verification from department of Industries dated 15.2.1963 in the name of M/s Shori Lal Bhola Nath may be exhibited as Exhibit PW-1/2. Certificate of verification from department of Industries dated 01.6.1965 in the name of M/s Shori Lal Bhola Nath may be exhibited as Exhibit PW1/3. Copy of receipt dated 21.11.1967 issued by Civil Supply Officer in the name of M/s Shori Lal Bhola Nath may be exhibited as Exhibit PW1/4.

In para 10. The property from which the shop was being run by my grandfather at i.e. 535/2, Main Road, Gandhi Nagar, Delhi-110031 was under the tenancy of the HUF and for the said property was taken on rent for the benefit of the members of the HUF in the name of my father. The rent for the said shop was being paid by my grandfather Late Sh.Shori Lal from the income from the said shop and business being run as a HUF business. My grandfather was also having a platform on tehbazari from the government and the HUF M/s Shori Lal Bhola Nath used to pay tehbazari fee for the same. The receipts bearing no.489100, 145008, 323097, 153016, 471080, 536100, 125027, 963054, 153015, 137007,

64063, 968005, 241007, 241006, 845073, 569011, 194001, 771078 and 685031 issued by the Municipal Corporation of Delhi may be exhibited as Exhibit PW-1/5 and PW1/23 respectively. My grandfather in the name of the HUF was carrying on business and was dealing with various persons and entities. Bill dated 17.2.1967 issued in favour of M/s Shori Lal Bhola Nath by M/s Jai Industries may be exhibited as Exhibited PW1/24. Bill dated 01.1.1963 issued in favour of M/s Shori Lal Bhola Nath by the Lyallpur Hardware & Tin Mfg. Co. may be exhibited as Exhibit PW- 1/25. Bill dated 24.4.1964 issued in favour of M/s Shori Lal Bhola Nath by M/s Satya Narain Vijay Kumar be exhibited as exhibit PW- 1/26.

In para 11. Copy of the Assessment orders dated 31.7.1970 for the assessment years 1964- 1965, 1966-1967 and 1967-1968 may be exhibited as Exhibit PW-

                      1/27,    PW-1/28   and   PW-1/29
                      respectively.

                           In para 12.      I along with

the defendants thereafter carried out construction on the said property bearing No.IX/1050, Patel Gali No.1- 2, South Gandhi Nagar, Delhi- 110031 from the funds received by the defendant no.1 from his father Late Sh.Shori Lal. The construction

on the property is more specifically shown in the site plan attached to the present suit. The said site plan has been prepared by Shri Dharmender Verma under my instructions and after inspection of the suit property and the same may be exhibited as Exhibit PW1/30.

In para 13. However, my uncle Shri Kishan Chand continued to reside at the said property till 1990s being a joint family property. My father had even applied to the Government for issuance of a Ration card in which his brother Shri Kishan Chand has been shown as a family member. I have also been shown as a family member. The ration card of my father dated 01.1.1980 may be exhibited as Exhibit PW-1/31. My grandfather Shri Shori Lal had even got electricity meter installed in the suit premises in his own name. Copy of the Electricity Bill dated 24th May, 2006 in the name of Shri Shori Lal may be exhibited as Exhibit PW- 1/32. Copy of the electricity bill dated 28th July, 2004 in the name of Shri Shori Lal may be exhibited as Exhibit PW1/33.

In para 14. Initially my grandfather had started the business of Kiryana and it was on account of my efforts that the business was diversified into glass business.

In para 15. The tenancy of the said shop was in favour of HUF, however, it was in the name of my father as representing the HUF. The business of glass that I started from the said shop was also being jointly run by me and my father as I had the knowledge and experience to run the business and my father was made joint in the said business out of respect for him and also as he was the Karta of the HUF.

In para 17. The glass business that was being carried out by me and my father.

In para 31. The same has not been accounted for to any of us the other members of the HUF.

In para 35. I state that during the pendency of the suit my father through my brother Shri Surinder Kumar Arora threw away some more of my goods which were still lying on the first floor of the suit property and also misappropriated some of it. Copy of the police complaint dated 02.5.2006 to SHO Police Station Gandhi Nagar may be exhibited as Exhibit PW-1/38.

In para 44. I state that I have come to know that my father has recently paid a sum of `12 lakhs only by bank draft to my brother Shri Suridner Kumar towards his

share in the HUF properties. I have also come to know that a substantial amount has also been paid in cash to him towards his share in the HUF properties."

5. It has also been contended in the application that the

plaintiff filed certain documents along with the affidavit,

which were neither relied upon by the plaintiff nor has any

permission been sought by him from the Court for placing

the said documents on record.

6. It is stated that prior to the amendment of the CPC on

01.7.2002, Order 13 Rule 2 CPC was in existence. It

permitted the Court to grant permission to a party to take

documents on record on being shown „sufficient cause‟ and

since this provision has been deleted, no additional

document could be taken on record. Thus, in a nutshell,

the prayer of the defendants in the application is twofold;

firstly, for expunging the contents/averments/paras in the

affidavit as stated hereinabove, which are stated to be

beyond pleadings and; secondly, seeking a direction that

additional documents filed by the plaintiff along with the

affidavit by way of evidence may not be taken on record.

7. The plaintiff has filed the reply to the application and

contested the prayer of the defendant. It has been stated

in the reply that the present application has been filed only

with a view to delay the disposal of the case. It has also

been stated that so far as the paragraphs which are stated

to be beyond pleadings are concerned, the plaintiff has

stated that the Evidence Act permits a party to not only

produce evidence with regard to the „fact in issue‟, but also

with regard to the „relevant facts‟ and for this purpose,

reference has been made to Section 5 to 55 of the Evidence

Act, the contents of which are produced therein. It is

sought to have been shown that a fact becomes relevant, to

the fact in issue under different heads and therefore, if it is

a relevant fact then it becomes admissible in evidence. It is

the case of the plaintiff that the averments which are

stated to be beyond pleadings are actually the evidence

with regard to the relevant facts which have been urged by

the plaintiff in the suit namely as to whether the plaintiff is

entitled to the partition of the suit.

8. It has also been stated by the plaintiff that the question of

relevancy and admissibility has to be decided by the

learned Local Commissioner during the recording of

evidence which is subject to the orders of the Court at the

stage of final disposal of the suit. Therefore, the present

application is not only misconceived but is also vexatious,

dilatory and deserves to be dismissed.

9. I have heard Mr.Sachdeva, the learned counsel for the

plaintiff as well as Mr.R.K.Khanna, learned senior counsel

for the defendants and perused the record.

10. The main contention of the learned senior counsel for the

defendants is that this is a settled legal position that a fact

which is not averred cannot be proved and the very fact

that the plaintiff has not made any averment with regard to

paragraphs reproduced in para 8 of the application shows

that he cannot be permitted to adduce evidence with

regard to these facts. It is stated that if the said

paragraphs are permitted to remain on the record, it would

result in incalculable harm to the defendants/applicants

inasmuch as in case the defendants does not cross

examine the witness on these aspects then it will be treated

to have been admitted and if he cross examines the witness

on those aspects then that can be read in evidence as it

will be assumed that the defendants/applicants has given

up his objection to such averments.

11. The second point which has been urged by the learned

senior counsel for the defendants is that the documents

which had been attached by the plaintiff along with his

affidavit had not been filed earlier and were not even relied

upon and therefore, by permitting to take the said

documents on record at this belated stage without the

permission of the Court and for which no provision exists

in the CPC, would result in a serious prejudice to the

defendants/applicants.

12. The learned counsel for the plaintiff has contested both

these submissions of the learned senior counsel for the

defendants.

13. So far as the question of averments made in the affidavit

are concerned, it has been contended by the learned

counsel that the question of relevancy and admissibility of

documents as well as of a fact is to be determined by the

learned Local Commissioner who is an experienced retired

District Judge and therefore, competent to deal with the

objection of the defendants. It is further stated that this

will be of course subject to the orders of the Court at the

time of final hearing, if the defendants still feels aggrieved

from the same.

14. It is stated by him that whatever objections the defendants

/applicants has, they can be recorded and adjudicated at

the time of final arguments.

15. I have carefully considered the submissions of the

respective sides and gone through the record.

16. Before considering the submissions made by the learned

senior counsel for the defendants, it would be worthwhile

to reproduce the relevant sub Rules of Order 18.

―1. ...........

2....................

3........................

4. Recording of evidence - (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.

(2) The evidence (cross-examination and re- examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it:

Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit.

(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.

(4) The Commissioner may record such remarks as it thinks material respecting the demenour of any witness while under examination:

Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments."

17. Order XIX Rule 3 of the CPC reads as under:-

"3. Matters to which affidavits shall be confined.--(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.

18. A perusal of the aforesaid Rule (4) of Order 18 shows that

the purpose of conducting the examination in chief by way

of affidavit is to cut short the delay in the recording of the

evidence of the parties, as deciding the objection at that

stage only causes delay in the disposal of the suit itself.

19. It may be pertinent here to refer to the portion which has

been highlighted in the aforesaid Rule which clearly

mandates that if a party has any objection then such an

objection can be got recorded before the Local

Commissioner and the question can be decided ultimately

by the Court at the stage of final argument. The whole

purpose and the scheme of the aforesaid order is to ensure

that there is minimum loss of time in recording the

evidence of the parties as it cause incalculable delay in the

disposal of the suit.

20. In the instant case also, I feel that since the learned Local

Commissioner who had been appointed was an

experienced and seasoned Retired Additional District Judge

and if at all there was any averment made in the affidavit

by the petitioner which was beyond pleadings to which the

defendants/applicants had any objection, the same could

be taken by him before the learned Local Commissioner

and got recorded rather than filing the present application.

21. I fully agree with the contention of the learned senior

counsel for the defendants that as a matter of law, a fact

which is not pleaded cannot be proved and therefore,

evidence has to be confined only with regard to the facts

which are pleaded but at the same time, it is not necessary

that in the plaint while pleading the facts, the evidence

with regard to the same be also averred. It is also correct

that under the Evidence Act, 1872 a party who is to

adduce evidence is given liberty not only to produce

evidence with regard to the „fact in issue‟ which is involved

in the case but it is also permitted to adduce evidence with

regard to the relevant facts provided, they are admissible

under Section 5 to 55 of the Evidence Act which clearly

lays down the parameters within which a fact must fall

and only then it can said to be a relevant fact.

22. It may be pertinent here to mention that a fact may be

relevant but still it may not be admissible. This can be

best illustrated by the privileged communications which

may take place between a husband and a wife, between a

lawyer and a client or any fact which endangers the

sovereignty and integrity of the nation. These facts though

may be relevant and falling under any of the Section 5 to

55, yet are not permitted to be admitted by virtue of

Section 125 to 128 of the Evidence Act. Therefore,

keeping in view all the aforesaid facts, it was essentially for

this reason that the applicants/defendants instead of filing

the present application, ought to have taken these

objections before the learned Local Commissioner who

would have dealt with them within the parameters of law

or alternatively got his objections recorded which could

have been dealt with by the Court at the stage of final

disposal. Therefore, I feel that in the light of the aforesaid

legal position, the proper remedy before the

defendants/applicants was to get his objections recorded, if

he had any, before the Local Commissioner rather than

filing the present application.

23. This leaves us with the second question with regard to the

documents which have been filed by the plaintiff along with

the affidavit. Merely because the document has been filed

along with the affidavit does not mean that the document

becomes admissible in law. The CPC clearly lays down

that the documents in original have to be filed along with

the plaint or the written statement as the case may be.

24. Order 7 Rule 14 CPC permits a party to file the documents

with the leave of the Court at a later date also. It is no

doubt correct that after 1.7.2002, the provision of Order 13

Rule 2 permitting a party to file documents belatedly on

showing good cause has been done away with but that

does not mean that the documents cannot be relied upon

or filed by a party. The only thing which is to be done by

the applicants/defendants in such a contingency where a

belated reference or reliance to a document is made is to

get his objections recorded before the Local Commissioner.

It may be pertinent here to refer to the judgment of our

High Court in the case titled Rajasthan Financial Corp.

Vs. Pukhraj Jain AIR 2001 Raj 71(73), wherein it has been

held that even though a document may be exhibited still

the question as to whether it has been rightly exhibited or

not can be decided by the Court at the stage of final

disposal.

25. On this score, even if the documents are filed belatedly by

the plaintiff along with the affidavit, the same can be dealt

with by the defendants/applicants by raising objections

before the learned Local Commissioner, if it has any, rather

than trying to delay the recording of cross examination.

26. For the aforesaid reasons, I am of the considered opinion

that the application which has been filed by the defendants

/applicants is only vexatious, dilatory and is accordingly

dismissed with cost of `20,000/-.

V.K. SHALI, J.

MARCH 29, 2011 RN