Delhi High Court
Suresh Kapoor vs Shashi Krishanlal Khanna & Ors. on 3 February, 2015
Author: Najmi Waziri
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 03.02.2015
+ OA No.44 of 2015 in CS(OS) No.236 of 2010
SURESH KAPOOR ..... Plaintiff
Through: None.
versus
SHASHI KRISHANLAL KHANNA & ORS. ..... Defendants
Through: Mr. Sangram Patnaik, Mr. Vikramjeet & Mr.
Vijay Jha, Advs. for D-1 & 2.
CORAM:
HON‟BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
IA No.2208/2015 (for condonation of two (2) days‟ delay in filing OA
No.44/2015)
The application has been filed for condonation of two (2) days‟ delay in
filing OA No.44/2015.
For the reasons stated in the application, the delay is condoned.
The application stands disposed off.
OA No.44/2015
1. The present appeal has been filed by defendant Nos.1 & 2 under Rule
4 of Chapter-II of the Delhi High Court (Original Side) Rules, 1967
against the order dated 5.12.2014 passed by the learned Joint
Registrar wherein the application (IA No.14205/2014) of said
defendants under Order XIII Rule 9 of the Code of Civil Procedure,
1908 (hereinafter referred to as „the CPC‟) for substitution of the
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original documents with the certified copies thereof was dismissed.
2. The appellant sought release of the following original documents and
substitution of the same with their respective certified copies:
a. Original copy of the suit for declaration along with written
statement and decree dated 18.2.1965.
b. Original copy of the registered Will dated 10.4.1964.
c. Agreement to Sell dated 6.2.1964.
d. Original copy of the Will dated 17.11.1982.
e. Original copy of the Will dated 17.11.1988, 12.3.2001 and
28.5.2008 (colly).
f. A copy of decree dated 12.4.1973.
g. Original copy of Will dated 24.10.1972.
h. A copy of the mutation certificate dated 23.12.2010.
i. A copy of the MCD Tax receipt.
j. A copy of the Relinquishment Deed dated 1.4.1992.
3. The said documents are stated to be kept in a sealed cover for
reference, if so required during the trial. While dismissing the
application, various factors were considered including the
apprehension of the plaintiff that if the documents were to be
returned back to defendant No.1, they may be misplaced or even
destroyed deliberately, in which circumstance, the plaintiff would not
be able to cross-examine the defendant or his witnesses and such
eventuality would cause irreparable loss to the plaintiff; that if the
documents were kept in a sealed cover, they are not under the threat
of getting damaged, tampered with or wasted; that the defendant had
not disclosed any reason as to why the original documents were
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required, especially since any action on the basis of the said original
documents would be subject to the outcome of the suit proceedings.
In support of his case, the plaintiff relied upon the judgments in
Aktiebolaget Volvo & Ors. v. R. Venkatachalam & Anr. 160 (2009)
DLT 100; Gitabai Shrinivas v. Dayaram Shankar & Ors. AIR 1970
Bom 160 and Narain & Ors. v. State of M.P. & Ors. 1996 (1)
MPJR 387, which held that although there is a provision for return
of the original documents, there are times when the original
documents would again be necessary for examination during trial. In
particular, when original documents like Wills, Agreements, etc. are
concerned, the Court would insist upon the same being filed and kept
on record; that the original documents should not be returned unless
the lis is decided. However, in circumstances when there is a need to
take away the original documents, the reason for doing so should be
insisted upon.
4. The suit has sought partition and rendition of accounts claiming to be
its co-owner and denying the defendant 1/9th share of the property by
virtue of his inheritance, whereas the defendant had contended in his
Written Statement that the plaintiff had no share in the suit property
because the latter is the owner of the entire suit property through a
registered Will of 4.6.2008; the defendant additionally relies upon
seven (7) other earlier Wills dated 10.4.1964, 18.1.1970, 24.1.1972,
10.6.1982, 1711.1988, 12.3.2001 & 28.5.2008 as well as on a
Relinquishment Deed dated 1.4.1992. These documents had been
denied by the plaintiff who claims them to be forged and fabricated.
The documents have been kept in a sealed cover by order dated
19.9.2011. Since the said documents had not been admitted by the
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plaintiff, the same cannot be treated as admitted documents which
could facilitate their substitution by certified copies and resultant
return of their respective originals to defendant Nos.1 & 2. The
recording of evidence of the parties was yet to begin, during which
exercise the original documents would be needed to be confronted for
proving/disproving them. The learned Joint Registrar was of the
view that the said original documents would be essential for just
and fair adjudication of the disputes between the parties. Besides,
if the documents were misplaced, damaged or tampered with, it
would deprive the plaintiff of his right to test their genuineness and
authenticity and in any case the defendant did not have the right to
seek return of the original documents till the matter was finally
heard and decided.
5. Mr. Sangram Patnaik, the learned counsel for defendant Nos.1 & 2
relying upon the dicta of Aktiebolaget Volvo & Ors. submits that
since the admission/denial of documents is over the documents may
be returned. This Court would notice that the said judgement itself
holds that "a document which is admitted in evidence is the primary
document i.e. the original, it could well be returned after inspection
of the original and an endorsement/exhibit mark is put thereon."
However, the said judgement goes on to observe that: "It should not
be understood as laying down that in all cases the filing of
photocopies is enough. If the document is doubtful or for any other
reason required by the court to remain in original on the file of the
court, the court can always direct so and a party cannot insist on
filing of copy only. There may be other instances where filing of the
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original is necessary, as in the case of documents like Will,
Agreements which may be terminated/cancelled by destruction. The
courts can in such cases insist upon the original being filed on the
record."
6. From the aforesaid, it is evident that the documents have not been
admitted therefore, it would be prudent to keep the original
documents like Wills and Agreements, which may be terminated by
cancellation or destruction. Any procedure or action which could
impede the trial of the suit or leading of evidence or appreciation
thereof, ought to be judiciously avoided.
7. In the present case defendant Nos.1 & 2 seek to prove their case on
the basis of certain original documents filed and kept in a sealed
cover. The said documents would be necessary at the time of leading
and appreciation of evidence.
8. For the reasons stated above, no case is made out for interfering with
the impugned order. The appeal is without merit and is accordingly
dismissed.
FEBRUARY 03, 2015 NAJMI WAZIRI, J.
b'nesh
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