Sanjiv Mahajan vs Kishore Kumar Khanna And Ors.
2013 Latest Caselaw 4957 Del

*       THE HIGH COURT OF DELHI AT NEW DELHI

+                       I.A.142/2013 & I.A. 14181/2013 in
                              CS(OS)1301/2002

                                                      Date of Decision: 29.10.2013

SANJIV MAHAJAN                                                ......PLAINTIFF
                                Through:         Mr. V.B.Andley, Sr. Adv. with
                                                 Mr. Priyanka Sharma, Adv.

                   Versus
KISHORE KUMAR KHANNA AND ORS.
                                                           ......DEFENDANTS
                                Through:         Mr. Girdhar Govind, Adv. with
                                                 Mr. Noor Alam, Adv.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

I.A. 142/2013 of the plaintiff under Section 151 CPC and I.A. 14181/2013 of the defendant under Section 151 CPC

1. The defendants had filed an affidavit of evidence along with large number of copies of documents. The plaintiff filed application being I.A. 142/2013 objecting to taking on record of the affidavit of evidence and the documents. The defendant filed I.A. 14181/2013 seeking condonation of delay in filing affidavit and documents. The respective applications were replied and contested by the parties.

2. The defendants submit that vide order dated 5th November, 2012 this Court directed them to file affidavit of evidence within four weeks.

The date of recording of evidence before the Local Commissioner being of 14th December 2012, they supplied copy of the affidavit with copies of documents to the plaintiff's counsel on 12 th December, 2012 and submitted the affidavit of evidence and documents before the Local Commissioner on 14th December 2012 and since there was change of Manager of the defendants, the documents could not be traced earlier, but they could be traced only when the deponent of the affidavit Mr. Khullar took over the charge, that the documents were traced with great efforts and it was because of this that there was delay of 8 days in filing affidavit and the copies of documents. The defendants have prayed for condonation of this delay of 8 days.

3. On the other hand, the plaintiff has chosen not only to reply and contest the above application of the defendants, but had earlier filed a separate application being I.A.14281/2012 objecting to the taking on record of the affidavit of evidence as also the documents. The plaintiff submits that it is not only the delay of 8 days, as alleged by the defendants, but the copies of the documents which are sought to be filed along with the affidavit could not be taken on record as neither any leave was taken from the Court before filing these documents, nor any cause much less sufficient has been set out as to non filing of these documents along with the plaint or before the settlement of issues. Further, it is also the plaintiff's case that, in any case the copies of the documents which are sought to be filed along with the affidavit could not be proved in the statement of witness as these documents are the photocopies of debit notes in the names of the third parties. The

learned counsel appearing for the plaintiff has taken me through the proceedings to highlight the conduct of the defendants in having delayed the trial.

4. To appreciate the controversy that arises, it would be relevant and appropriate to refer to the proceedings which have taken place in this case. The suit was filed on 21st August, 2002. The written statement was filed by the defendants in September 2003. No documents were filed by the defendants along with the written statement. Since the defendants had failed to file the documents, it was ordered on 6th September 2004 that they may now file the documents within two weeks failing which right to file the same would stand closed. Thereafter, not only that no documents were filed by the defendants, but they absented and were proceeded ex-parte on 9th August, 2005. However, vide order of 29th November 2005, the defendants were permitted to join the proceedings and by this time the case was at the stage of recording of plaintiff's evidence. From 7 th May 2007 onwards the case was at the stage of cross examination of plaintiff who was the only witness of his case. The cross examination of the plaintiff was conducted on few dates and was finally concluded on 15th February 2010 when on this day the plaintiff's evidence was closed. The case was also listed for final hearing for few dates, but on 31st May 2010 on the request made by the counsel for the defendants that they are to examine only one witness namely Ritesh Manchanda who had signed the written statement and that his affidavit of evidence was ready, that one opportunity was granted to the defendants to file

the affidavit of evidence of Ritesh Manchanda within four weeks and the case was listed for his cross examination on 10 th August 2010. It was categorically recorded that the counsel of the defendants had agreed not to seek any further adjournment and that the case shall be finally heard after recording of Ritesh Manchanda's evidence. Despite the specific direction of cross examination of Ritesh Manchanda on 10th August 2010, he did not appear for his evidence. Again on 17 th September, 2010 on the request of the defendants' counsel the case was adjourned for recording of evidence on 18th October 2010. As the affidavit of evidence of Mr. Manchanda had still not been filed, the same was directed to be filed atleast 10 days before the date fixed for recording of his evidence on 18th October 2010. It was categorically made clear that if the affidavit was not filed by the defendants atleast 10 days before the date of recording of his evidence, the evidence of the defendants shall stand closed. Again no affidavit of evidence had been filed and on 18th October 2010, the defendants again made a request for seeking more time for filing of affidavit of evidence. On 1 st November 2010, on the request of the defendants matter was adjourned to 16.11.2010 for cross examination of Ritesh Manchanda and it was made clear that if he was not produced on that day for cross examination, no further opportunity on any ground was to be given and the evidence of the defendant would stand closed without any further orders from the Court. On this date it had also been informed by the learned counsel for the defendants that affidavit of evidence of Ritesh Manchanda had been filed on 18th October 2010. However, on 16th

November it was informed by learned counsel for the defendants that it was the affidavit of evidence of Mr. P.K. Kapoor which was filed on 18th October 2010 and not that of Ritesh Manchanda, as the later had left the services of defendant No. 3 about a year ago. It was in this fact scenario that the court directed the cross examination of Mr. P.K. Kapoor on the same date at 2.15 pm. He was partly cross examined on this day and on subsequent date 14.01.2011. Thereafter, Mr. Kapoor also stopped appearing and on the request of the defendants, the matter got adjourned. On 27th March 2012, again a similar statement was made that this witness Mr. Kapoor had also left the services and could not be contacted to remain present for his cross examination. It was submitted by learned counsel for the defendants that he was to seek instructions as to whether Mr. Kapoor was to come for further cross examination or he was to be substituted by some other witness. While adjourning the matter for 5th July 2012, it was recorded that no further opportunity will be granted for defendants' evidence. None appeared for the defendants on 5th July 2012 and on 6th July. It was informed that DW-1 Mr. Kapoor has left the services of the defendant No. 3. While entertaining another request for adjournment for cross examination of DW-1, it was clarified that no further opportunity was to be granted and in case no evidence was led on the next date of hearing, the defendants' evidence shall be deemed to be closed. On the adjourned date i.e. 19th September 2012, again no witness was present, but the learned counsel for the defendants stated that he had filed some application for substitution of DW-1 which had been granted on 6th

July 2012. Here it may be noted that on 6th July 2012, no such application was listed nor any order was passed allowing his substitution. However, since DW was not present on 19 th September 2012 also, the defendants' evidence was closed. Now, at this stage defendants filed application being I.A. 18070/2012 seeking recalling the order of 19th September 2012 and for grant of one last opportunity for recording their evidence before the Local Commissioner. On the concession being given by the learned counsel for the plaintiff, the request of defendants was allowed and one opportunity as final was granted with the direction to file affidavit by way of evidence positively within a period of four weeks. It was made clear that except this opportunity which is the last to complete their evidence, no further opportunity was to be granted. The matter was listed before the Local Commissioner for recording of cross examination of the witness on 14th December 2012 at 2.30 pm.

5. It was at this stage that the affidavit of evidence of another witness namely Rajesh Khullar along with copies of documents was filed by the defendants before the Local Commissioner on 14 th December 2012. The copy of the affidavit was given to the plaintiff's counsel only on 12th December 2012. It is this affidavit which is stated by the defendants having been filed with the delay of 8 days and for which they are seeking condonation. The copies of the documents which are filed along with this affidavit are the photocopies of debit notes. Not only that excepting copies of two debit notes, which are purporting to be issued by defendant No. 2 in the name of plaintiff, all

the remaining debit notes are in the names of third parties and most of which are not even legible. In addition to these documents, the defendants have also filed copy of resolution and Memorandum and Articles of Association of defendant No. 3. Beside the conduct of the defendants, as noted above, that not only that the documents were not filed along with written statement, but even thereafter with the affidavit of evidence of the two previous witnesses, the same are sought to be filed based on a vague premise that these documents could not be discovered earlier. It is unbelievable that even the Memorandum and Articles of Association, which is the basic document of a private limited company, was not produced earlier and was not traceable until Mr. Khullar took over.

6. So far as the delay in filing affidavit of evidence of witness Mr. Rajesh Khullar is concerned as also resolution of the company in his favour, the discretion in condoning the delay in filing the same can be exercised in the interest of justice, but however, the rest of the documents which were already in the possession of the defendants and have not been filed earlier along with the written statement and despite the repeated directions given by the court as noted above, at this fag end of the trial, the plaintiff cannot be prejudiced by getting surprises from these documents.

7. The law in this regard as provided under Order 8 Rule 1A (1) CPC is clear that where the defendant bases his defence upon a document or relies upon any document in his possession or power, in

support of his defences, he shall enter such documents in a list and produce it in the Court when written statement is presented by him and shall at the same time, deliver the document and a copy thereof to be filed with the written statement. Further, as per Order 8 Rule 1A(2) CPC where any such document was not in the possession or power of the defendant, he was required to state in whose possession or power it is. Further, as per Sub Rule (3) of Rule 1A of Order 8, a document which ought to be produced in the Court by the defendant under this Rule, but, is not so produced, was not to be received in evidence on behalf of the defendant at the hearing of the suit, without the leave of the Court.

5. Order 13 Rule 1 CPC further makes it mandatory on the parties to produce on or before settlement of issues all the documentary evidence in original, where the copies thereof have already been filed along with the plaint or the written statement.

6. In the instant case not only that no leave has been taken by the defendants in filing these documents at this stage of the suit, but the documents were not filed by the defendants despite repeated directions given by the Court.

7. In the case of Harkesh Singh & Anr. Vs. Vedraj, 168 (2010) DLT 484, this Court held thus:

"The only ground stated by the petitioners, is that due to inadvertence, they did not file the documents. Inadvertence is no ground for

allowing an application for production of documents at the stage of evidence. I find no force in this petition. The petition is hereby dismissed."

8. In view of my above discussion, both the applications of the parties are disposed in that delay in filing the affidavit of evidence of DW Rajesh Khullar along with copy of resolution is condoned and excepting this the rest of the documents filed by the defendants along with the said affidavit of evidence are taken off the record.

9. The defendants will be afforded only one opportunity for cross examination of this witness. The parties will appear before the Local Commissioner on 20/11/2013 for scheduling date for recording of cross examination of DW Rajesh Khullar.

M.L. MEHTA, J.

OCTOBER 29, 2013 acm