Delhi High Court
Smt. Shanta Agnihotri vs M/S. Aman Associates (P) Ltd. on 1 December, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 520/2013 and C.M. No.7804/2013 (stay)
% 1st December, 2014
SMT. SHANTA AGNIHOTRI ......Petitioner
Through: Ms. Vibha Mahajan Seth, Advocate.
VERSUS
M/S. AMAN ASSOCIATES (P) LTD. ...... Respondent
Through: Mr. A.K. Upadhyay, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India
impugns the order of the trial court dated 8.5.2013 by which the trial court
has dismissed the application filed by the petitioner/defendant, in a suit for
specific performance and damages, to cross-examine the witness of the
plaintiff PW-1 with respect to questions as to why secondary evidence
should not be allowed to be led/proved by PW1.
2. It is an admitted fact on record that respondent/plaintiff has
been allowed to lead secondary evidence and therefore when secondary
evidence is allowed to be led then before leading secondary evidence
foundational evidence has to be given being the reasons as to why original
evidence is not available for being filed and proved in the court. With
respect to this foundational evidence which is required to be led, surely, the
other side i.e the petitioner/defendant is always entitled to cross-examine the
witness for confronting the witness with the questions that the original
evidence is not being led in the court not for the reasons as stated by the
witness but for other reasons as contended by the petitioner/defendant.
3. In the present case, counsel for the petitioner who was also the
counsel for the petitioner/defendant in the trial court, filed the subject
application supported by her affidavit stating that the court refused to allow
her to put these questions pertaining to the reasons for original
document/evidence being not the correct reasons, and which I am inclined to
believe, more so because impugned order dismisses this application saying
that the issue of cross-examination is a 'matter of law'. I fail to understand
as to how cross-examination of a witness with respect to facts can be a
'matter of law'. Questions have necessarily to be put with respect to reasons
for non-filing of primary evidence/original documents by the other side
when the first party/plaintiff does not lead original/primary evidence but
leads secondary evidence.
4. In view of the above, impugned order when it dismisses the
subject application under Section 151 of the Code of Civil Procedure, 1908
(CPC) is set aside and the petitioner/defendant is entitled to put questions
with respect to foundational evidence which has been led by the
respondent/plaintiff for bringing in secondary evidence. Petition is
accordingly allowed and disposed of, leaving the parties to bear their own
costs. PW-1 will be now recalled in terms of the present judgment so that
the petitioner/defendant can cross-examine the said witness on the aspects as
stated above.
VALMIKI J. MEHTA, J
DECEMBER 01, 2014
Ne
