M/S. S. Shalu Constructions ... vs Bharat Jee Kohli & Anr.
2014 Latest Caselaw 3485 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Order delivered on: August 04, 2014

+                   I.A. No.12426/2014 in CS(OS) No.69/2011

      M/S S. SHALU CONSTRUCTIONS PRIVATE LTD ..... Plaintiff
                    Through Mr.Dinesh Garg, Advocate.

                         versus

      BHARAT JEE KOHLI & ANR.                ..... Defendants
                   Through Mr.Vivek Srivastava, Adv for D-1.
                            Ms.Suman Kapoor, Adv for D-2.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. By way of this order I propose to decide application being I.A. No.12426/2014 under Order 18 Rule 3 and 17 read with Section 151 CPC filed by the plaintiff.

2. It is stated in the application that the defendants had entered into a collaboration agreement dated 1st June, 2010 read with collaboration agreement dated 22nd October, 2010, with the plaintiff to develop the property bearing No.A-42, N.D.S.E. Part-II, New Delhi, measuring 250 sq.yds. When the defendants failed to perform their part of obligations, the plaintiff filed the aforesaid suit for specific performance. Out of the agreed consideration of Rs.2,95,00,000/-, the plaintiff had paid a sum of Rs.1,35,00,000/- before filing of the suit and had deposited the balance consideration of Rs.1,60,00,000/- in Court pursuant to order dated 12th January, 2011.

3. The defendants contested the suit by filing their written statement. On the pleadings of the parties, the issues were framed on 28th July, 2011 and thereafter the plaintiff filed its affidavit of evidence and proved the facts stated in the plaint by evidence by way of affidavit of Shri Ajay Sharma, Director of the plaintiff company as PW1 and also exhibited certain documents exhibited as Ex. PW1/1 to Ex. PW1/2 have been marked as mark 'A' & 'B' in support of its case. Thereafter, the defendants led their evidence.

4. It is stated that during further cross-examination of the defendant No.2 on 14th March, 2014, the plaintiff had produced the original minute book and the original certificate of incorporation and confronted the defendant No.2. The copies of the said originals were already on record as mark 'A' and 'B' when the defendant No.2 had stated that the two are different based on the endorsement with regard to the true copies.

5. After the defendant's evidence was closed, the plaintiff was given an opportunity to lead evidence in rebuttal and accordingly, the plaintiff filed an affidavit of PW-1 in evidence in rebuttal. The case was fixed for 21st April, 2014 for cross-examination of plaintiff's witness in rebuttal. The plaintiff's said witness was present in Court on the said date with the original certificate of incorporation and original minute book, however the matter was adjourned on that date to 9th May, 2014, when again PW-1 was present with the documents. However, the cross-examination of PW-1 in rebuttal could not be recorded on that date because of the objections raised by the defendant No.2 and accordingly the matter was adjourned to 11th

July, 2014 for filing the reply to objections and for the hearing on such objections.

6. It is further averred in the application that if the plaintiff is not permitted to lead the evidence as filed by way of affidavit in evidence in rebuttal, the plaintiff would suffer irreparable loss and injury.

7. Reply on behalf of the defendant No.2 to application under Order 18 Rule 3 and 17 CPC read with Section 151 CPC was filed wherein it was stated that it is the plaintiff who deliberately and with malafide intention failed to perform the collaboration agreement. It is stated that the evidence in rebuttal by way of affidavit, which the plaintiff has filed on 19th March, 2014 is in respect of issue No.1 and after the conclusion of evidence hence no opportunity can be provided to the plaintiff. It is further stated that the plaintiff cannot be permitted even for additional evidence and/or to permit the recalling of PW-1 to lead additional evidence by way of affidavit and relied on the case of Vadiraj Naggappa Vernekar (D) through LRS vs. Sharad Chand Prabhakar Gogate, reported in V (2009) SLT 250 wherein it was held that only after cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. It is further stated that if the witness is recalled, the trial will begin afresh which is not permissible in law and the defendants will suffer great and irreparable loss. Para 16 and 17 of the decision referred by the defendants counsel reads as under:

"16. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and reexamination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.

17. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which, has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in-chief with permission to

the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out."

8. On similar proposition of law and issue involved in the matter, learned counsel for the defendants has also referred:

(i) Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai vs. Gupta Building Material Store II (2013) SLT 423

(ii) Wazirpur Small Industries Association (Regd) vs. Union of India & ORs.2010(115) DRJ 221

(iii) Surjit Singh & Ors vs. Jagtar Singh & ORs.AIR 2007 P&H 1

(iv) Aranya Kumar Panda vs. Chintamani Panda AIR 1977 Orissa 87

(v) R.N. Gosain vs. Yashpal Dhir AIR 1993 SC 352

9. The plaintiff in the present case has been granted opportunity to lead evidence in rebuttal. Copies of the same very documents were exhibited as PW1/1 and PW1/2 which were already filed along with suit. Since the original/certified copies were not filed, therefore at the time of recording evidence, they were marked as A and B. These documents are original minutes book and certificate of incorporation of the plaintiff. Learned counsel for the plaintiff has shown the original documents at the time of hearing of the application. Counsel submitted that these documents can be considered as additional evidence i.e. if the prayer is opposed by the defendants. His submission is that the plaintiff is not producing any new document. The plaintiff is producing the original documents, copies whereof already on record which were filed along with plaint. The plaintiff is

also not filing up the lacuna as it is the admitted position that the plaintiff company is registered under the Indian Companies Act. The plaint is signed by the director of the company and the present suit is otherwise maintainable under Order 29 of CPC.

10. Counsel for the plaintiff has referred the following judgments in support of his submission that the said two document be exhibited as additional evidence under Order 41 Rule 21 CPC:

(i) In Jayaramdas and Sons vs. Mirza Rafatullah Baig and ORs., JT 2004 (5) SC 367 wherein it was held:

"8. It is true that additional evidence, whether oral or documentary, is not to be admitted in Appellate Court unless a case for admission thereof is made out by reference to Clause (a) or (aa) of Sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of Clause (b). A perusal of the documents, brought to our notice by the learned counsel for the appellants and their comparison with the documents already available on record, clearly goes to show that the two are at variance and the effect of such variance determined either way would have a material bearing on the crucial issue arising for decision between the parties.

9. As already pointed out both the sets of documents are certified copies of public documents. The appellants would not ordinarily suspect or doubt the documents where the certified copies of public documents were secured from the public officer having the custody of such public documents. It is only when it came to their knowledge that the certified copies were at variance with the originals or were not complete copies that they thought of securing another set of certified copies and then seeking leave of the Court for producing the certified copies obtained by them as an additional evidence in Appellate Court. The case of the appellants for production of additional evidence falls within

Clause (aa) of Sub-rule (1), abovesaid. It would have been better if such ground was set out specifically in the application so that the opposite party could have had an opportunity of meeting the plea and the First Appellate Court could also have had the provisions of Clause (aa) of Sub- rule (1) in its mind for dealing with the appellants' application. However, still we feel that the ends of justice demand the additional evidence being allowed to be produced de hors the deficiency in the application filed by the appellants."

(ii) In North Eastern Railway Adminstration vs. Bhagwan Das AIR 2008 SC 2139 wherein it was held:

"13. It is plain that under Clause (b) of Sub rule (1) of Rule 27 Order 41 C.P.C., with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it 'requires' to enable it to pronounce judgment 'or for any other substantial cause'. The scope of the rule, in particular of Clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur and Ors. vs. Lal Mohar Thakur and Ors., AIR 1931 PC 143. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows:

"Under Clause (1) (b) it is only where the appellate Court 'requires' it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands some inherent lacuna or defect becomes apparent."

14. Again in K. Venkataramiah v. A. Seetharama Reddy and Ors. [1964] 2 SCR 35 a Constitution Bench of this Court while reiterating the afore-noted observations in Parsotim's case (supra), pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence 'to enable it to pronounce judgment', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.

15. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. AIR 1957 SC 363 which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see: Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166).

(iii) In Ram Niwas vs. Kalu Ram, (2012) 167 PLR 190 wherein it was held:

"14. It has been specifically noticed by this court in the aforesaid case that even if the documents, namely, jamabandis, which were sought to be produced in additional evidence were within knowledge of the party therein, but still the court can always allow these to be produced on record in terms of Order 41 Rule 27(1)(b) CPC, considering the fact that these documents cannot be created or manufactured for the first time after the decision of the suit. The evidentiary value thereof has to be considered by the court in the light of other material on record."

11. Considering the overall facts and circumstances, as the opportunity for rebuttal has already been granted. The two documents are allowed to be exhibited by the plaintiff as additional evidence but subject to the conditional cost of Rs.20,000/- which shall be paid by the plaintiff to the defendant within four weeks from today. The application is accordingly disposed of.

CS(OS) No.69/2011

12. Parties to appear before the Joint Registrar for the purpose of fixing the date for evidence in rebuttal on behalf of plaintiff on 17th September, 2014.

(MANMOHAN SINGH) JUDGE AUGUST 04, 2014