Manu Kumar And Anr. vs Delhi Development Authority
2015 Latest Caselaw 539 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Date of Decision: January 20, 2015
+     CS(OS) 1660/2001
      MANU KUMAR AND ANR.                         ..... Plaintiffs
                      Through: Mr. M. S. Vinaik, Advocate
               versus
      DELHI DEVELOPMENT AUTHORITY C+                       ..... Defendant
                      Through: Mr. Sachit Setia, Adv. for d-2 to 4, 6 & 7

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

OA No.313/2014

1. This appeal is filed seeking to impugn the order dated 01.12.2014 passed by the Joint Registrar.

2. The background facts which lead to filing of the appeal are that pursuant to the directions of the Joint Registrar the defendant No.1/appellant DDA filed an affidavit of Mr. S. K. Jain containing admission/denial of documents on 08.01.2013.

3. On 26.07.2013, a statement was made before the Joint Registrar by the said Mr. S. K. Jain that certain documents of the plaintiffs have been admitted without comparing the same with the documents on record. Time was sought to file a fresh affidavit of admission/denial. Liberty was granted to file a fresh affidavit by the Joint Registrar.

4. On 30.07.2013 the order of the Joint Registrar notes that a fresh

affidavit of admission/denial as directed on 26.07.2013 has been handed over across the Board and the same is taken on record. As the plaintiffs objected to the fresh affidavit the matter was placed before the Court.

5. On 12.08.2013 the Court noted that the fresh affidavit filed is not on record and the matter was renotifed. Thereafter the Joint Registrar passed the impugned order dated 01.12.2014 whereby the Joint Registrar held that it is not permissible to withdraw admissions by defendant No.1 made in proceedings before the court and withdrawal of such admissions in the name of a mistake and that too without permission of the Court was unwarranted. The Court directed that the first affidavit dated 08.01.2013 filed by defendant No.1 with respect to admission/denial of documents be considered as the relevant affidavit of admission/denial.

6. Learned counsel appearing for the appellant/defendant No.1 submits that the previous orders of the Joint Registrar dated 26.07.2013 and of the Court dated 12.08.2013, clearly shows that this Court has already permitted the appellant to file a fresh affidavit of admission/denial and that there can be no reason for the Joint Registrar now to pass the impugned order dated 01.12.2014 directing that the admission/denial be done based on the first affidavit dated 08.01.2013. This affidavit it is submitted has already been permitted to be withdrawn.

7. Learned counsel appearing for the plaintiff on the other hand has opposed the appeal pointing out that admission/denial once done cannot be permitted to be withdrawn. Defendant No.1 having admitted the documents cannot be permitted to withdraw the admission. It is further submitted that DDA in a mindless and whimsical manner are harassing the plaintiffs who are

bonafide purchasers of the suit property at the behest of builder mafia, who are constantly forging documents to claim title. It is urged that the suit property pertains to property No.D-153, Saket, New Delhi, which was owned by the father of the plaintiffs. The said property is a vacant piece of land because of which builders, property agents and mafia are trying to usurp the property by forging the Will of the father of the plaintiffs.

8. „Admission‟ is defined under Section 17 of the Indian Evidence Act, 1872 as follows:-

"17. Admission defined. - An admission is a statement, (oral or documentary or contained in electronic form), which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."

Section 31 of the said Act states that admission is not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained. Section 31 reads as under:- "31. Admissions not conclusive proof, but may estop. - Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained."

Section 58 of the said Act reads as follows:-

58 Facts admitted need not be proved. --No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

9. The legal position regarding admission is that normally an admission is not conclusive and it can always be explained. Reference may be had to two judgments of the Supreme Court. In 'Nagubai Ammal and Ors.v.s B. Shama Rao and Ors.' AIR 1956 SC 593 the Supreme Court held as follows:-

"16. An admission is not conclusive as to the truth of the matters stated the rein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous and untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. ...."

In 'Panchdeo Narain Srivastava vs. Km. Jyoti Sahay and Anr. ' AIR 1983 SC 462 the Supreme Court held as follows:-

"3. Even if the High Court was justified in holding that the deletion of the word „Uterine‟ has some significance and may work in favour of either side to a very great extent yet that itself would not provide any justification for rejecting the amendment in exercise of its revisional jurisdiction. We may, in this connection, refer to Ganesh Trading Co. V. Moji Ram MANU/SC/0018/1978 : [1978] 2 SCR 614 wherein this Court after a review of number of decisions speaking through Beg, C.J. observed that procedural law is intended to facilitate and not to obstruct the course of substantive justice. But the learned Counsel for the respondents contended that by the device of amendment a very important admission is being withdrawn. An admission made by party maybe withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn....."

10. Hence, an admission made in an affidavit of admission/denial can

always be explained away. This High Court in the case of 'Bhai Swinder Singh vs. Ram Kishore' 66 (1997) DLT 575 was dealing with the application under Order 23 Rule 1 (3) CPC which was not signed by all the defendants. This Court held that the application could be withdrawn as it is not signed by all the parties. On the apprehension that admission made in the application would also to be withdrawn this Court held as follows:-

"(5) If the respondent apprehends that the admissions made in the application by plaintiff No.2 would also be withdrawn, it is clarified that so long as the application remains on the record, plaintiff No.2 could be confronted with those admissions which‟ have been made in the application. But in that case, plaintiff No.2 would certainly be entitled to explain the circumstances in which the alleged compromise was arrived at. Therefore, it would not be justified to say that respondents are likely to be prejudiced in any manner by withdrawal of the application."

11. The facts of the case are applicable to the facts of the present case. The first affidavit of admission/denial filed on 08.01.2013 even if permitted to be withdrawn for purpose of admission/denial would remain on record and would be available to the plaintiff to rely upon it as prescribed by law.

12. It would be open to the plaintiff to confront the witnesses of defendant No.1 regarding the admissions contained in the said affidavit of Mr. S. K. Jain dated 08.01.2013. It would be for defendant No.1 to explain the circumstances under which the said affidavit was signed. In my opinion for the purpose of marking exhibits on documents it would be the second affidavit dated 10.02.2014 which would be the relevant affidavit.

13. My above conclusion is supported by the judgment of the Supreme

Court in the case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple and Anr. 2003 (8) SCC 752 where in para 19 & 20 it is held as under:-

19. Order 13 Rule 4 of the CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialed by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend on the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced.

20. The learned counsel for the defendant-respondent has relied on The Roman Catholic Mission v. The State of Madras and Anr.

MANU/SC/0253/1966MANU/SC/0253/1966 :

[1966]3SCR283 in support of his submission that a document not admissible in evidence, though-brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:-

(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked

as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the made of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.

14. In the present case, it may be noted that though defendant No.1/appellant

had filed his affidavit dated 08.01.2013 no documents were physically exhibited pursuant to the said admission/denial. The matter was adjourned on several dates and before the documents of the plaintiff could be physically marked on the basis of the admission/denial of affidavits the fresh affidavit was filed by defendant No.1 on 26.07.2013.

15. I may note that there has been no submission made by learned counsel for the plaintiff as to what is the exact prejudice likely to be caused to the plaintiff in case the admission/denial as contained in the second affidavit dated 10.02.2014 is permitted. Other than submitting that defendant No.1 is in league with land mafia no specific prejudice has been pointed out. A perusal of the two affidavits filed by DDA shows that what is sought to be changed in the subsequent affidavit is denial of letters written by plaintiff to DDA. At this stage of the suit there is enough opportunity available to the plaintiff to prove these documents in accordance with law. Hence I modify the impugned order as above. The second affidavit filed by DDA dated 10.02.2014 would be the relevant affidavit for purpose of marking exhibits on documents of the plaintiff. The first affidavit dated 08.01.2013 would however remain on record.

16. The appeal stands disposed of.

JAYANT NATH, J JANUARY 20, 2015 An