Seema Anand vs Prem Kumar
2012 Latest Caselaw 2651 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment:23.04.2012.

+     CM(M) 470/2012 & CM Nos.7244-45/2012


      SEEMA ANAND                                    ..... Petitioner
                               Through    Mr.Anil Kathuria, Adv.

                      versus


      PREM KUMAR                                       ..... Respondent
                               Through    Nemo.



      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Four applications have been disposed of vide the impugned order

dated 21.03.2012. Two applications have been filed by the plaintiff and

two applications have been filed by the defendant. The two applications

filed by the plaintiff were; the first application was under order 13 Rule

2 of the Code of Civil Procedure (hereinafter referred to as the 'Code')

seeking permission of the Court to place on record the original

document i.e. agreement to sell by virtue of which he had claimed

ownership in the suit property; present suit is a suit for possession; the

plaintiff had relied upon the agreement to sell dated 21.04.2008 claiming

ownership in the suit premises; admittedly the photocopy of the

aforenoted document had been filed but it could not be exhibited; in the

course of testimony of PW-1 as the original document was not on

record; it had only been marked; it was at that stage when the present

application had been filed by the plaintiff under Order 13 Rule 2 of the

Code seeking permission of the Court to place on record the original of

the aforenoted document. Reply had been filed opposing the application

primarily on the ground that the original document had not been filed in

the time frame; it should have been filed along with the plaint and could

not have been filed later on. The authenticity and validity of the

aforenoted document has not been questioned. Record shows that along

with the suit for possession photocopy of this document had been filed;

in this application under scrutiny it had been averred that it was only

when the testimony of PW-1 was in progress that the present application

had been filed as the plaintiff realized that it was only a photocopy and

not the original which had been filed; it was then marked and not

exhibited. Validity of the document not being disputed and this

application having been filed at the stage when the evidence of the

plaintiff was in progress, the impugned order allowing the prayer made

by the applicant/plaintiff in no manner suffers from any infirmity.

2 The second application which had been allowed was the prayer of

the plaintiff seeking permission of the Court to place on record the list

of witnesses was taken on record. This was during the testimony of

PW-1 which was in progress at that stage. The order on this application

also suffers from no infirmity.

3 The defendant is also aggrieved by the finding returned on the

two applications filed by him; first application is under Order 14 Rule 2

of the Code; the second application is under Sections 33/35 of the Indian

Stamp Act; contention in the first application is that a preliminary issue

should be framed which is to the effect that the suit is not maintainable

in the present form; objection of non-joinder of parties had also been

taken. The Court had correctly returned a finding that this application

had been filed at the stage of the evidence of the defendant and as such

no preliminary issue can be framed at that stage when the evidence has

almost culminated and case is ripe for conclusion. The Court had also

noted that on 18.04.2009, a preliminary issue had been framed which

was to the aforenoted effect:-

"Whether the suit is not maintainable in view of the non-registration of the agreement to sell and other documents to which the property is transferred which are related to under stamped as per the later notification?" 4 This issue was disposed of on 21.04.2009; while disposing of this

preliminary issue as also the second preliminary issue which was on

pecuniary jurisdiction, the Court had noted that the question whether the

documents (agreement to sell) is under-stamped or not can be looked at

only after the trial for which purpose evidence is required and cannot be

disposed of at that stage. This finding in the order dated 21.04.2009 was

up-held by the High Court in CM (M) No. 741/2010 on 28.05.2010.

5 By way of the aforenoted present two applications which the

defendant has field, he is seeking to raise the same issue which already

stood decided by the trial Court on 21.04.2009 and stood endorsed by

the High Court on 28.05.2010; these applications filed by the defendant

are nothing but an abuse of the process of the Court and had been filed

only with an intent to delay the progress of the case and this was noted

in the correct perspective in the impugned order.

6 The present petition is an abuse of the process of the Court; it is

filed malafide; it is nothing but one more last ditch effort to delay the

progress of the case; it is dismissed with costs of Rs.20,000/-.

                                              INDERMEET KAUR, J
APRIL      23, 2012
A