Jai Singh And Anr vs Man Singh And Ors
2014 Latest Caselaw 172 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA 413/2009

                                                    Decided on 09.01.2014
IN THE MATTER OF :
JAI SINGH AND ANR                                          ..... Appellants
                         Through: Mrs. Rekha Palli, Advocate with
                         Ms. Amrita Prakash and Ms. Ankita Patnaik, Advs.

                  versus

MAN SINGH AND ORS                                        ..... Respondents
                         Through: Mr. Kamal Jit Chhiber, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

CM APPL. 19404/2013 (by the respondents/defendants u/O XLI Rule 27 read with Section 151 CPC and Section 165 of the Indian Evidence Act)

1. The present application has been filed by the

respondents/defendants praying inter alia for permission to produce

additional documentary evidence.

2. Learned counsel for the respondents/defendants states that his

clients had filed photocopies of twenty five documents under an index

dated 22.05.2002, which was subsequent to their filing the written

statement in the trial court. The said list of documents includes copies of

the lease deeds dated 11.08.1953 and 11.02.1954 executed by the Delhi

Improvement Trust in respect of the subject premises No.11805-11806,

Gali No.6, Sat Nagar, Karol Bagh, in favour of the respondents No.1 and

2, who were then minors, under the guardianship of their father, Shri

Ram Singh. The said documents also include copies of two sale deeds,

both dated 06.09.1940, executed by the legal heirs of Shri Budhu, the

original lessee of the subject premises, in favour of the

respondents/defendants No.1 and 2, that have been mentioned at Sr.

No.1 and 10 of the list of documents. Learned counsel states that the

respondents/defendants No.1 and 2 had averred in para 9 of the

preliminary objection taken in the written statement that they are owners

of the subject plots having purchased the same from the sons of late Shri

Budhu by virtue of two separate sale deeds, both dated 06.09.1940 and

that they are also owners of the built up structures that were constructed

on the said plots. The respondents have further averred in para 3 on

merits of the written statement that the subject plots were allotted by the

Delhi Improvement Trust on the basis of Indentures dated 11.08.1953

and 16.02.1954.

3. Learned counsel for the respondents/defendants No.1 & 2 states

that the aforesaid documents are very material for deciding the suit

instituted by the appellants/plaintiffs praying inter alia for a decree of

partition of the subject plots. However, the counsel who was conducting

the case on behalf of the respondents/defendants in the trial court had

committed a blunder by failing to place on record the original documents

or producing the same at the time of admission and denial of documents,

so that they could have been exhibited. As a result, the trial court did not

have an opportunity to examine the aforesaid documents, the defendants

having failed to exhibit them. He states that his clients ought not to be

made to suffer for the folly of their counsel and interest of justice

demands that the said documents be permitted to be produced by way of

additional evidence and be taken into consideration.

4. Though notice has not been issued on the present application,

learned counsel for the appellants/plaintiffs does not deny the fact that

the aforesaid documents are necessary for purposes of adjudicating the

suit, particularly, in the light of the relief prayed for by them in the suit.

5. It is pertinent to note that in the accompanying appeal, the

appellants/plaintiffs have assailed the judgment dated 25.09.2009 passed

by the trial court dismissing their suit for partition and permanent

injunction in respect of the subject properties. It is the case of the

appellants/plaintiffs that they are entitled to seek partition of the

aforesaid properties that were owned by Shri Ram Singh, father of the

appellant/plaintiff No.1 and defendants No.6 and 7 (sons from the second

wife of Shri Ram Singh, Smt. Krishna Pyari) and defendants No.1 and 2

(sons of Shri Ram Singh from his first wife, Smt. Badami).

6. The aforesaid suit was contested by the respondents/defendants

No.1 & 2 on the ground that the suit properties were not owned by Shri

Ram Singh, as alleged, but were owned by them. However, as noted

above, while filing photocopies of the aforesaid indentures/sale deeds

etc., the defendants had failed to file the originals thereof, much less

produce the originals at the time of admission and denial. As a result, the

trial court did not have the benefit of perusing the said documents for

purposes of deciding the issues framed in the suit that are reproduced

hereinbelow for ready reference :-

"1. Whether the plaintiffs have no locus standi to file the present suit? OPD

2. Whether the present suit is bad for non-joinder of the necessary party? OPD-7

3. Whether the present suit has not been properly valued for the purpose of court fee? OPD-7

4. Whether the plaintiffs have no cause of action to file the present suit? OPD

5. Whether the plaintiffs are entitled to a preliminary decree of partition, as prayed for? OPP

6. Whether the plaintiffs are entitled to a decree of permanent injunction, as prayed for? OPP

7. Relief"

7. The onus in respect of issues No.1 and 4 pertaining to their locus

standi and cause of action for the appellants/plaintiffs to institute the suit

was placed on the respondents/defendants and after considering the

evidence available on record, the aforesaid issues were decided in favour

of the respondents/defendants and against the appellants/plaintiffs. The

said decision is mainly based on the deposition of PW-1, i.e., the appellant

No.1 and on documents exhibited as Ex.PW-1/3 to PW-1/5, which are the

Jamabandies of the suit plots pertaining to the years, 1939-40, 1943,

1944 and 1975-76. The said documents were placed on record by the

appellants/plaintiffs but they had claimed that they had been forged and

fabricated at the instance of the defendants No.1 and 2. The impugned

judgment also took into consideration Ex.PW-1/8, an election identity card

of the respondent No.1 and Ex.PW-1/7, the school leaving certificate of

the respondent No.2, apart from the testimony of DW-1(defendant No.1)

to observe that during his cross-examination, nothing material had come

on record to suggest that the subject properties were not owned by the

defendants or the construction was not raised with funds arranged by

their mother. Consequently, the trial court concluded that the

appellants/plaintiffs had failed to prove that they had any right in the

subject properties or had the locus standi to institute the suit, much less

any cause of action to seek the relief as prayed for. As a result, the suit

was dismissed.

8. Now the respondents/defendants have filed the present application

seeking leave to produce the original documents, photocopies whereof

were already placed on record by them before the trial court, and grant of

permission to have the admission and denial thereof conducted so that

they can be exhibited in accordance with law and a fresh decision taken

by the trial court.

9. Section 107 of the CPC empowers the appellate court "to take

additional evidence or to require such evidence to be taken", "subject to

such conditions and limitations as may be prescribed". Rule 27 of Order

41 of the CPC prescribes the conditions and limitations placed on this

discretion. The Rules starts by laying down that the parties to an appeal

shall not be entitled to produce additional evidence whether oral or

documentary, in the appellate court. It then proceeds to carve out two

circumstances where the appellate court may allow additional evidence to

be produced. The first circumstance is where the court appealed from has

refused to admit such evidence that ought to have been admitted and the

second circumstance is where the appellate court requires such evidence

either to enable it to pronounce judgment or for any other substantial

cause. As observed by the Supreme Court in the case of Wadi Vs. Amilal

& Ors. reported as 2004 (1) SCALE 82, "invocation of clause (b) does

not depend upon the vigilance or negligence of the parties for it is not

meant for them. It is for the appellant to resort to it when on a

consideration of material on record, it feels that admission of additional

evidence is necessary to pronounce a satisfactory judgment in the case."

10. In the present case, for the issue of title of the subject properties to

be established satisfactorily, it was necessary that the ownership

documents come on record. However, in the absence of the best

evidence, the trial court had no option but to decide the issue of the locus

standi of the appellants/plaintiffs and cause of action on the basis of

secondary evidence including entries made in the revenue records dating

back to the year 1939-40 and 1943-44, which could only throw light on

the status of occupation of the subject properties. For purposes of

dispelling the obscurity on the issue of title, which is of paramount

consideration in a suit of partition, interest of justice demands that the

documents of title relating to the subject premises and in the power and

possession of the respondents/defendants be looked into to arrive at a

just and correct decision.

11. Accordingly, the originals of the documents relating to the title of

the subject premises, photocopies whereof were filed by the

respondents/defendants in the trial court under index dated 22.5.2002

are permitted to be taken on record as additional evidence.

12. However, considering the fact that it is on account of failure on the

part of the respondents/defendants to file the original title documents

that had an important bearing on the case and were material for the

consideration of the trial court, for purposes of satisfactorily adjudicating

the present suit, it is deemed appropriate to allow this application subject

to payment of Rs.50,000/- as costs to the other side within four weeks.

13. Resultantly, the appeal is allowed and the impugned judgment is set

aside. In view of the fact that the additional evidence has been allowed

to be produced by the respondents/defendants, the case is remanded

back to the trial court for the parties to appear before the said Court,

conduct admission and denial of the original title deeds of the subject

properties that shall be filed by the defendants and/or produced on the

date that may be fixed and for further proceedings in accordance with

law.

14. At this stage, counsel for the appellants/plaintiffs states that during

the pendency of the suit before the trial court, an interim order had been

operating in favour of the appellants/plaintiffs, restraining the

respondents/defendants from transferring, selling or alienating the suit

properties and the said protection may be extended to her clients till the

trial court adjudicates the suit afresh.

15. In response, counsel for the respondents/defendants states that his

clients undertake not to sell, transfer or alienate the suit properties in any

manner, till fresh adjudication of the suit is undertaken by the trial court.

16. While binding the respondents to their undertaking as recorded

above, the appeal is disposed of.

17. The parties are directed to appear before the trial court on 28th

February, 2014, for further proceedings.

18. The trial court record be released forthwith.

                                                               (HIMA KOHLI)
JANUARY 9, 2014                                                   JUDGE
rkb/mk