Smt Preeti Arora vs Sh Aniket Subhash Kore
2014 Latest Caselaw 491 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Date of Decision: 27.01.2014


+                         CM(M) 1358 OF 2013


      SMT PREETI ARORA                             ..... Petitioner
                   Through:            Mr. Somdutt Kaushik, Adv.

                          versus

      SH ANIKET SUBHASH KORE           ..... Respondent

Through: Ms. Anu Narula, Adv.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE NAJMI WAZIRI

1. This is a petition challenging the order of the Additional

District Judge disallowing the petitioner's application to

bring on record print outs of certain e-mails allegedly

exchanged between the parties. The Hon'ble Supreme

Court had transferred the case to the Karkardooma Courts

at Delhi with a direction that the petition be disposed off

as expeditiously as possible, preferably within 9 months

from the date of framing of issues. The reason for

disallowing the petitioner's application was that after

pleadings of the parties had been completed and issues

were framed on 25.05.2013 and evidence of the petitioner

have been completed on 20.09.2013 the documents were

sought to be brought on record. It was objected to on the

ground that the documents existed much earlier before

the reply of the petitioner to the divorce petition had been

filed, that they are not new documents, and that the

application was filed simply because there has been a

change of counsel and therefore a change of opinion.

2. According to the Trial Court, permission to bring the said

documents on record at this stage would cause prejudice

to the petitioner who may not have the opportunity to

place his case in respect of the documents. On

16.12.2013 the proceedings before the trial court in HMA

No.352/2012 had been stayed. The respondent husband

has sought to challenge the said order on the following

grounds:- the divorce petition was filed in April 2011 and

the petitioner wife had all along known the case against

her. Reply to the petition makes no whisper of this

correspondence nor were these documents adduced to the

reply or at any stage prior to the evidence of the

respondent husband which has now been completed.

Counsel appearing for the respondent/husband also drew

attention of the Court to the fact that although on

26.11.2013 and 29.11.2013, 9.12.2013, 13.12.2013 and

14.12.2013, the petitioner/wife did not appear before the

Trial Court, no medical certificate was presented before

the Court on 9.12.2013 stating that she was unwell. She

contends that the plea of illness is belied by the fact that

the affidavit was sworn on 12.12.2013 before the Oath

Commissioner appointed by the High Court. Evidently

she was in a position to move about on 12.12.2013, yet

she did not appear before the Court on 13.12.2013 and

14.12.2013. This shows that the petitioner is trying to

delay and frustrate the proceedings in the trial court on

one pretext or the other. Counsel for the respondent

Ms.Anu Narula contends that however the law requires

that the documents relied upon are required to be filed at

the appropriate stage i.e. along with the written statement

which means that they have to be filed before the

replication is filed or otherwise with the permission of the

Court at the time of framing of issues but definitely

before evidence starts. She further contends that the

copies of e-mail which are sought to be brought on record

were exchanged in the petitioner's affidavit of evidence

filed on 09.07.2013 and tendered on 22.07.2013.

However no application was filed for taking on record the

said correspondence as required under Order VII rule 14.

Such application was filed only on 24.10.2013. The plea

that the delayed filing of the e-mail was on account of the

fact that the respondent came to know about this lapse

only when the file was sent by her counsel during her

cross-examination is untenable. She further contends that

the documents sought to be adduced now as a part of the

evidence in any case not as per the requirement of

Section 65B of the Indian Evidence Act, 1872. Counsel

for the petitioner on the other hand says that the

proceedings pending before the trial court are in the

context of a socially beneficial legislation concerning the

marital relationship between the parties. Therefore the

courts would always take a view which would advance

the cause of justice and a strict interpretation which

would cause irreparable loss and disadvantage to the wife

ought not to be taken.

3. Section 65 of the Indian Evidence Act prescribes the

conditions for admissibility of physical records which

inter alia requires a certificate to be adduced along with

the purported evidence.

4. Sub-section 4 reads as under:-

Section 65 sub section (4)

4. In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say;-

(a) Identifying the electronic record containing the statement and describing the manner in which it

was produced ;

(b) Giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) Dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

5. From the facts as mentioned above the following position

emerges that the petitioner had full knowledge of the case

against her by as alleged in the divorce petition from April,

2011. The trial court was directed on 01.3.2012 to complete

the proceedings preferably within 9 months from the date of

framing of issues which was done on 23.05.2013. Therefore,

the divorce petition has to be decided by 23.02.2014. Apart

from the reason that the application for bringing on record

the print outs of the e-mails had been occasioned only on

account of change of counsel, no other reason has been

provided. In the opinion of this Court, that itself would

not be a sufficient reason in any case. To seek indulgence

of a Court to accept additional documents under Order VII

rule 14, the party seeking to produce documents must

satisfy the Court that the said documents were earlier not

within the party's knowledge or could not be produced at

the appropriate time in spite of due diligence.1 It has not

been the case of the petitioner/wife that the documents

were not within her power or that the same could not be

produced despite exercise of due diligence. There is no

whisper of such alleged correspondence either in the reply

to the divorce petition or list of documents or list of

reliance which was filed by the petitioner wife. These

documents are not new and were evidently in the

knowledge of the petitioner wife prior to the filing of the

divorce petition. Permitting the same to be brought on

record now would have its own cascading effect

Gold Rock World Trade Ltd. v Veejay Lakshmi Engineering Works Ltd. (2007 (143) DLT 113)

in the form of an amendment of the written statement/reply,

a rejoinder thereto issues have framed fresh evidence to be

led, etc. This would unnecessarily delay the proceedings and

also defeat the scheme that the CPC spells out for an

equitable framework and schedule with which the parties

have to comply and the courts ought to conduct proceedings

before it.

6. For the aforesaid reasons, this Court is not persuaded to

interfere with the impugned order. The petition is

dismissed as being without any merit.

NAJMI WAZIRI (JUDGE) JANUARY 27, 2014 mm