Delhi High Court
Arun Vij vs Trilok Nath Pasricha on 5 October, 2015
Author: Sanjeev Sachdeva
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 09th September 2015
Judgment Delivered on: 05th October 2015
+ FAO(OS) 359/2015
ARUN VIJ ..... APPELLANT
VERSUS
TRILOK NATH PASRICHA ..... RESPONDENT
Advocates who appeared in this case:
For the Appellant : Mr Sanjay Agnihotri, Advocate with appellant in
person.
For the Respondent : Mr K. K. Sharma, Sr Advocate with Mr Rajiv
Bakshi, Ms Bhanita Patowary, Mr Ketan and Mr
Ayush, Advocates.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J
1. This appeal impugns order dated 27.05.2015, whereby the
application filed by the appellant (the defendant in the suit) under
Order 11 Rule 14 and Order 18 Rule 17 of the Code of Civil
Procedure, 1908 (hereinafter referred to as the CPC) seeking a
direction to the respondent (plaintiff in the suit) to produce (i)
complaint to the Commissioner of Police, Delhi Police dated
13.03.2004 alongwith proof of dispatch/delivery/receipt and (ii)
relinquishment deeds dated 10.10.2003 and 16.08.2003 has been
dismissed.
2. The contention of the defendant is that the said documents have
been relied upon by the plaintiff in the plaint and are necessary for the
purposes of determining the disputes between the parties. It is
contended that the documents relate to the matter in question in the
suit and as such are required to be produced by the plaintiff/
respondent herein. It is contended that the documents are in the
power and possession of the respondent.
3. The learned single Judge has dismissed the application of the
appellant noticing the contention of the respondent that the
respondent/plaintiff did not rely upon the said documents in the plaint,
further no issue had been framed on the said documents, and as such,
there was no question of producing the same. It has been noticed by
the learned single judge that no evidence has been led by the
respondent/plaintiff on the said documents. The cross-examination of
the respondent/plaintiff's witnesses is already over and the witnesses
have been cross-examined at length on behalf of the
appellant/defendant. The case is now at the stage of the
appellant/defendant's evidence and as such, the court has found that
there was no question for producing the said documents.
4. Learned single Judge has noted the contention of the counsel
for the respondent that the Delhi Police has already stated that the
record of the said police complaint has been destroyed as per Rules,
and the respondent's witness has deposed that no copy of the said
complaint was available with them. In these circumstances, the
learned single Judge has held that the documents cannot be produced.
The application has accordingly been dismissed.
5. The subject application had been filed by the appellant under
order 11 rule 14 read with order 18 rule 17 of CPC.
6. Order 11 Rule 14 CPC lays down as under:-
"14. Production of documents.- It shall be lawful
for the court, at any time during the pendency of
any suit, to order the production by any party
thereto, upon oath of such of the documents in his
possession or power, relating to any matter in
question in such suit, as the court shall think right;
and the Court may deal with such documents,
when produced, in such manner as shall appear
just."
7. Order 18 Rule 17 CPC lays down as under:-
"17. Court may recall and examine witness.- The
Court may at any stage of a suit recall any witness
who has been examined and may (subject to the
law of evidence for the time being in force) put
such questions to him as the Court thinks fit."
8. Order 11 Rule 14 CPC lays down that it is lawful for the Court
at any time to order production by any party of such documents in his
power or possession relating to any matter in question in such suit as
the Court shall think right. What is relevant under Order 11 Rule 14
CPC is that the documents must relate to any matter in question in the
suit. Order 18 Rule 17 CPC empowers the court to recall any witness
who has already deposed and put such questions as the court may
deem fit to such witness.
9. The purpose of the appellant behind seeking recall of the
witness is for cross-examination of the said witness on the documents,
the production of which has been sought. So prior to recall of any
witness under Order 18 Rule 17 CPC, what is to be determined is
whether the respondent is liable to be directed to produce the sought
for documents. For that, it is necessary to determine whether the said
documents relate to any matter in question in the present suit.
10. The suit is for possession filed by the respondent seeking
possession from the appellant. Issue No. 4 is whether the plaintiff is
owner of the property and is entitled to possession thereof from the
defendant? The onus of the said issue has been placed on the plaintiff
i.e. the respondent herein. The evidence of the respondent is already
over. The witnesses of the respondent have already been cross-
examined on behalf of the appellant. Perusal of the plaint does not
show that the respondent has specifically referred to either the two
relinquishment deeds or the police complaint. It may be noticed that
the certified copies of the relinquishment deeds and copy of the police
complaint are also on record, having been produced by the appellant.
The subject documents have not been relied upon by the
respondent/plaintiff. The certified copy of the said documents, in any
case, has already been filed on record by the respondent. None of the
issues framed in the present suit relate in any manner to the said
documents. The respondent/plaintiff has not proved any of the said
documents in discharge of the onus placed upon him. It cannot be said
that the documents relate to any matter in question in the present suit.
11. Further, with regard to ownership of the property, as noticed
above, the onus is on the respondent. The respondent has already led
its evidence. The witnesses of the respondent have been cross-
examined on behalf of the appellant at length. It is also noticed that
the respondent has not led any evidence in respect of the said
documents. The witness of the respondent was cross-examined on
behalf of the appellant based on the copies of the subject documents
that are on record.
12. Since the documents in our view do not relate to any matter in
question in the present suit, the respondent cannot be directed to
produce the same under Order 11 Rule 14 CPC.
13. Since the subject documents do not relate to any matter in
question in the suit and are not liable to be produced under Order 11
Rule 14 CPC, so there is no question of recall of any witness of the
respondent under Order 18 Rule 17 CPC.
14. In our view, there is no infirmity in the order passed by the
learned single Judge dismissing the application of the appellant.
15. In view of the above, we find no merit in the appeal. The
appeal is accordingly dismissed leaving the parties to bear their own
costs.
SANJEEV SACHDEVA, J
BADAR DURREZ AHMED, J
October 05, 2015
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