Scindia Potteries & Services P ... vs Jk Jain & Anr
2012 Latest Caselaw 6054 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+              OA No.78/2011 in CS(OS) 1311/2001

                                            Date of Decision: 9th October,2012

IN THE MATTER OF

SCINDIA POTTERIES & SERVICES P LTD.                                ..... Plaintiff

                                  Through   Mr. Ajay Kapur, Sr. Advocate with
                                            Mr.Harshbir   Singh    Kohli and
                                            Mr.Dinesh Kumar, Advocates

                       versus



JK JAIN & ANR                                                   ..... Defendants

                                  Through   Mr. Sanjiv Kakra and Mr. Irfan Ahmed,
                                            Advocates for D-1.


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present Chamber Appeal has been filed by the defendant No.1

against the order dated 22.03.2011 passed by the Joint Registrar

disposing of IA No.3213/2011, an application that was filed by the

aforesaid defendant, under Order VIII Rule 1A(3) CPC, for permission to

produce additional documents at the stage when evidence was being led

by the defendants.

2. The grievance of the defendant No.1 is that by the aforesaid order,

I.A. No. 3213/2011 was only partly allowed by the Joint Registrar who

had granted permission to the applicant to place on record documents

that were mentioned in para 4 and sub paras (h), (i) and (j) of para 7 of

the application, the Board Resolution of the defendant No.2 company

dated 20.09.1999 as mentioned in para 8 of the application and the

certified copies of the order dated 16.02.1993 passed by the Gwalior

Bench of the High Court of Madhya Pradesh, and a copy of the writ

petition, registered as WP(C) No. 20897/2005 and filed in the High Court

of Madhya Pradesh. Learned counsel for the appellant/defendant No.1

further states that as a copy of the Prospectus for Public Issue of the

defendant No.2 as mentioned in para 8 of the application, was

subsequently permitted to be taken on record during the course of

recording the evidence of a witness(DW14), he does not wish to press the

present appeal in respect of the said document.

3. As for the remaining documents that were sought to be filed, it is

submitted by learned counsel for the appellant/defendant No.1 that while

passing the impugned order dated 22.03.2011, and only partly allowing

the application filed by the defendant No.1, the Joint Registrar has not

offered any explanation for rejecting/disallowing the request of the

defendant No.1 for filing the remaining documents as mentioned in the

said application. He states that though an explanation was duly offered by

the defendant No.1 for the belated filing of the said documents, the same

was not taken note of by the Joint Registrar while passing the impugned

order.

4. Before considering the submissions made by both sides, it is

necessary to refer to some material dates. The first date relevant for

consideration is 1.6.2001, the date when the accompanying suit for

possession was instituted by the plaintiff against the defendants. In the

year 2002, the defendants had filed their written statement.

Accompanying the said written statement were thirty one documents.

Pertinently, none of the documents mentioned in IA No.3213/2011

formed a part of the list of documents that was filed by the defendants at

the relevant time. Issues in the present suit were framed on 16.05.2005.

Later on, on the basis of an application that was filed by the defendants,

additional issues were framed on 07.09.2005. Thereafter, the plaintiff's

evidence stood concluded in the year 2009. Vide order dated 3.6.2010,

the defendants were directed to lead their evidence and were called upon

to file their affidavits within two weeks. The first affidavit that was filed by

the defendants on 13.6.2010, was that of defendant No.1(DW-9) and it

was running into sixty six pages. It was along with the aforesaid affidavit

of DW-9 that the documents mentioned in the present application were

filed, but without seeking the leave of the Court.

5. Subsequently, on 14.02.2011, I.A. No. 3213/2011 was filed by the

defendant No.1 for seeking permission to place on record, the aforesaid

documents. The aforesaid application was considered by the Joint

Registrar and was partly allowed by the impugned order dated

22.03.2011. While passing the aforesaid order, the Joint Registrar had

categorized the documents into three categories, and had observed that

the documents sought to be brought on record by the defendant No.1 had

not seen the light of the day despite several opportunities given to him to

produce the documentary evidence. By placing reliance on two judgments

of co-ordinate Benches of this Court in the case of Dr. J.K. Jain

Vs.Krishnaram Baldeo Investment & Finance Co.Ltd. dated 14.8.2008 in

CM(M) No.217/2008 and another judgment in the case of Y.N.Gupta Vs.

Jagdish Chander Sharma & Anr. reported as 2010(116) DRJ 737, the

Joint Registrar had opined that no specific explanation had been offered

by the defendants for filing the documents at such a belated stage and

accordingly, the request made for placing the said documents on record

was declined, except for those documents that have been mentioned in

para 2 above.

6. The main grievance of the defendant No.1 is that the explanation as

offered in I.A. No. 3213/2011 for non-filing of the documents was not

taken into consideration by the Joint Registrar while passing the

impugned order and therefore, the present appeal ought to be allowed

and all the documents mentioned in the aforesaid application ought to be

taken on record. Pertinently, the documents disallowed by the Joint

Registrar include the Deed of Declaration of Trust dated 19.9.2005

executed by Lt.Rajmata Vijaya Raje Scindia, extracts from the book,

"Princess" authored by Lt.Rajmata Vijaya Raje Scindia & Manohar

Moolgaonkar, the Book, "Ädvertising in Rural India" and excerpts from the

issue dated 1.11.2010 of the magazine, "Öutlook".

7. The explanation offered by the defendant No.1 for non-filing of the

aforesaid documents at an earlier stage finds mention in para 6 of the

application wherein, it has been stated that several of the documents as

mentioned in the application were not traceable by defendant No.1, the

same being old documents/records and having been archived along with

numerous other old records in a library that was situated adjacent to the

boundary wall of the suit premises under the occupation of the

defendants. It was further averred that on 22.11.2009, a speeding truck

had rammed into the suit premises and had broken the boundary wall

causing damage to the aforesaid library and as the said accident had

caused the death of an unknown person, an FIR had also been lodged

subsequently. It was only thereafter that the defendant No.1 claims that

he decided to move out of the library so as to safeguard the valuable

equipments and documents archived in the library, and in the said

process, he came to know about the existence of the documents that find

mention in para 8 of the application and that too only in the month of

November 2010. The old documents claimed to have been archived have

been detailed in para 7 of the application.

8. Pertinently, the truck accident in question had taken place in the

month of November 2009, but as per the defendant No.1, he came to

know about the existence of the documents that were proposed to be

filed, one year thereafter, in November 2010 and the application in

question came to be filed three months thereafter, in February 2011.

However, these documents were enclosed by defendant No.1 with his

affidavit that came to be filed on 13.6.2010.

9. The present Chamber Appeal is vehemently opposed by the other

side. Learned Senior Advocate appearing for the plaintiff submits that the

present appeal is nothing but an attempt on the part of the defendant

No.1 to further delay the suit proceedings that have been dragging for the

past one decade and most of the delay is attributable to the defendants

who have not been co-operating in an expeditious trial of the suit as they

are in possession of the suit premises and they want to prolong the

litigation. He further states that while considering the present appeal, the

submission made by the other side that the documents mentioned in the

application are relevant for adjudication of the present suit cannot be the

only ground which ought to weigh with the Court and that the Court must

satisfy itself that just and sufficient cause has been demonstrated by the

defendants for permission to place on record the said documents when

the suit is at an advance stage of trial, which justification has not been

offered by the other side. Reliance has been placed on the decisions in the

cases of Harkesh Singh & Anr. vs. Ved Raj reported as 168(2010) DLT

484 and in Asia Pacific Breweries Vs. Superior Industries reported as

158(2009) DLT 670, to submit that as most of the documents now

sought to be filed were admittedly within the power and possession of the

defendant No.1, he cannot be permitted to file fresh material and

documents at an advance stage of the suit under the garb of the present

belated application.

10. The Court has considered the rival submissions of the parties and

perused the present appeal as also the averments made in I.A. No.

3213/2011, in the light of the impugned order. It is trite that documents

cannot be permitted to be produced by the parties at any and every stage

of the trial and those documents which are not produced at an

appropriate stage ought not to be allowed by the Court unless and until

just and sufficient cause is shown therefor. In the present case, the

application filed by the defendant No.1 for seeking permission to place on

record the additional documents in question, is undoubtedly belated, as

the plaintiff's evidence had already been concluded by then and by now,

the defendants have also produced fourteen witnesses for deposing, thus

leaving only four or five witnesses to be examined.

11. Learned counsel for the defendants submits that the registered

Deed of Trust dated 19.09.2005 signed by late Rajmata Vijaya Raje

Scindia had been duly mentioned in the written statement filed by the

defendants. The said written statement was filed some time in the year

2002. It is undisputed that a copy of the said Deed of Trust had not been

filed by the defendants either at the time of filing the written statement or

even later on. As regards the other documents as noticed above, the

explanation offered is that the said documents had been archived and

came to the notice of the defendant No.1 only when they were being

removed from the library situated in the suit premises and being re-

located.

12. It is the defendants' own case that most of the documents that

have been mentioned in the application in question were within the power

and possession of the defendant No.1. A perusal of IA No.3213/2011

reveals that the defendant No.1 has not made any averment with regard

to the steps that were taken by him to procure the said documents at the

relevant time and place them on record. Since it is the submission of

learned counsel for the defendants that some of the documents, for

example the registered Deed of Trust, were mentioned in the written

statement, it was all the more incumbent on the defendant No.1 to have

produced the said documents/certified copies thereof at the relevant time.

Admittedly, in the present case, admission/denial of documents was

concluded as long back as on 17.03.2003. Issues were framed thereafter

on 16.05.2005 and additional issues were framed on 07.09.2005. Thus

there were ample opportunities available to the defendant No.1 to have

filed the relevant documents either prior to conclusion of admission/denial

of documents or after framing of issues on 16.05.2005 or 07.09.2005.

Neither of the aforesaid opportunities were availed of by the defendant

No.1 for reasons best known to him.

13. Instead, defendant No.1 has waited for the plaintiff to conclude its

evidence which stood concluded three years ago, in the year 2009 and

thereafter, the defendants have proceeded to lead their own evidence by

producing fourteen witnesses till now. Defendant no.1 filed his own

affidavit by way of evidence as DW-9, on 13.6.2010 and he has enclosed

the documents in question therewith knowing very well that no such prior

permission had been taken/granted by the court for the said purpose. It

was only after about three months from the date of filing of the said

affidavit, did it dawn on the defendant No.1 that he was required to

approach the Court for taking permission to file the said documents and

thus, I.A. No. 3213/2011 came to be filed on 14.2.2011.

14. The justification offered by the defendant No.1 for not having filed

the documents in question on earlier occasions is not found to be

satisfactory or justiceable. Simply because it is stated that the

documents were archived by the defendant No.1 in a library situated in

the suit premises does not mean that he ought not to have shown due

diligence of browsing through his own records for identifying such of the

documents that were considered relevant for substantiating his defence in

the present case.

15. The defendant No.1 did not file any of the documents in question

along with his written statement. Nor were the said documents included in

the list of documents or relied upon in the list of reliance though most of

them were in the possession of defendant No.1. For defendant No.1 to

state at this belated stage that the documents as filed by him along with

IA No.3213/2011 are necessary for proper adjudication of the controversy

involved in the suit or that they are vital and go to the root of the case,

cannot be accepted for the reason that much time has lapsed after the

defendants filed their written statement in the year 2002. Issues were

framed in the year 2005 whereafter, the plaintiff concluded its evidence in

the year 2009. Further, the defendant No.1 has tendered his evidence by

way of affidavit and fourteen witnesses have already been produced by

them till now. Such of the documents that have not been permitted to be

placed on record were well within the power and possession of the

defendant No.1 and most of them were in public domain and could have

been very well obtained by him had he shown due diligence at the right

time. Despite the same, the Joint Registrar has granted leave to the

defendant No.1 to place on record a large number of the documents as

mentioned in para 2 hereinabove, barring only a few, for which

permission was declined.

16. In view of the foregoing facts and circumstances, this Court is the

opinion that the defendant No.1 has failed to show any sufficient cause for

belated production of the aforesaid documents and there is no satisfactory

reason offered as to why he should be granted liberty to place them on

record now. A complete lack of diligence has been demonstrated by the

defendant No.1 for seeking permission to produce the documents in

question. It cannot be stated that he was earlier unaware of the

existence of the said documents or that he could not produce the said

documents despite due diligence demonstrated by him. In any case, as

noted above, the Joint Registrar has examined the relevancy of the

documents in question, categorized them and thereafter, allowed the

defendant No.1 to place on record some of the documents considered

necessary while declining him permission to file the remaining documents.

17. This Court does not find any justification for interfering with the

impugned order which appears to be just and proper and passed after

proper application of mind. There is merit in the submission made by

learned counsel for the plaintiff that his client would be adversely affected

if the said documents are permitted to be taken on record after such an

inordinate delay. Further, permitting the defendant no.1 to file the

remaining documents at this stage will undoubtedly retard the progress of

the case entirely to the detriment of the plaintiff, which is not permissible.

18. For the aforesaid reasons, the impugned order dated 22.03.2011

passed by the Joint Registrar is upheld and the present appeal is

dismissed as being devoid of merits.

(HIMA KOHLI) JUDGE OCTOBER 09, 2012 raj/mk