Deepika Prashar & Anr vs Suman Singh Virk And Anr
2016 Latest Caselaw 5138 Del

$~9
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 71/2015
       DEEPIKA PRASHAR & ANR                     ..... Plaintiffs
                    Through: Mr. Sumit Bansal and Mr. Ateev
                             Mathur, Advs.

                                  Versus

      SUMAN SINGH VIRK AND ANR                        ..... Defendants
                        Through: Mr. Jayant Mehta and Mr. Piyush
                                  Kaushik, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                ORDER

% 04.08.2016 IAs No.9140/2016 (of D-1 for amendment of written statement) & 9139/2016 (of D-2 for amendment of written statement)

1. Issue notice.

2. Notice is accepted by the counsel for the plaintiffs/non-applicants

who states that a reply is required to be filed.

3. Reply be filed within four weeks.

4. Rejoinder thereto, if any be filed before the next date of hearing.

5. List on 8th November, 2016.

IAs No.468/2015 & 12501/2015 (both u/O 39 R-1&2 CPC)

6. The counsels for the parties state that they need further time to file the

proposal for letting out of half of 4th Floor of property No.L-1/8, South

Extension Part-II, New Delhi in terms of the order dated 20th July, 2016.

7. List on 8th November, 2016.

CS(OS) No.71/2015

8. In this suit for partition, possession and recovery of damages, on 19th

July, 2016 after hearing arguments on the applications of the plaintiffs for

interim relief and on the aspect of framing of issues, the following order was

passed:

"1. The counsels have been heard on the applications as well as on the aspect of framing of issues.

2. The plaintiffs in the suit have inter alia referred to a Family Settlement/Agreement of November, 2012 purported to be signed by both the defendants. Mr. Piyush Kaushik, Advocate (Enrolment No.D/2565/2011) acting on behalf of the defendants has denied the signatures of the defendants on the said document.

3. I have asked the counsel on what basis he has denied the signatures.

4. He states that he has denied the same under instructions from the defendants.

5. On enquiry whether he had shown the signatures thereon to the defendants and whether he is willing to on behalf of the defendants take the consequences of the denial of signatures if the signatures are ultimately found to be the defendants, he states that he is not and rather, that he has not denied the signatures but the document.

6. The same demonstrates the casual attitude with which the important stage in the suit of admission/denial of documents is treated. The counsels, if choose to take the onerous task on themselves, ought to be ready to face the consequences.

7. The defendants as well as the plaintiffs to appear in person on

20th July, 2016.

8. The original document stated to be lying in sealed cover be also called."

9. The defendants no.1&2 Smt. Suman Singh Virk and Ms.

Sushma Choudhary appeared before this Court on 20th July, 2016

when the following order was passed:

"1. In pursuance to yesterday‟s order the defendants no.1&2 Smt. Suman Singh Virk and Ms. Sushma Chaudhary are present in Court and their statements have been separately recorded and in which they have admitted their signatures on the document titled „Family Settlement / Agreement‟ original whereof lying in sealed cover has been called from the Registry. Need to ask them any further question has not arisen since the said defendants in their written statements have falsely denied the said document and have not explained in what circumstance their signature appear on the document without their executing the same.

2. On the contrary, the defendants through counsel, as recorded in yesterday‟s order, during admission / denial, denied the document and which denial was also false.

3. The aforesaid shows an offence within the meaning of Section 340 of the Cr.P.C. to have been committed by the defendants in relation to the said proceedings.

4. It is deemed appropriate to issue notice to show cause to the defendants as to why prosecution should not be launched against them.

5. Notice is accepted by the defendants present in person.

6. Reply be filed within 10 days.

7. In the aforesaid circumstances, it is also deemed appropriate that half of the 4th floor of property No.L-1/8, South Extension Part-II, New Delhi which is in possession of the defendants, be let out and rent thereof be deposited in the Court for the benefit of whosoever is ultimately found entitled thereto.

8. The framing of issues if any in the suit is also deferred.

9. The parties to on the next date of hearing also place their proposals with respect to letting out of half of the 4th floor of the property in the possession of the defendants.

10. Original document be sealed again.

11. List on 4th August, 2016."

10. The defendants have filed affidavits in response to the notice to show

cause issued to them.

11. The defendant no.1 Smt. Suman Singh Virk in her affidavit has stated

i) that property No.L-1/8, South Extension Part-II, New Delhi to which the

suit pertains was jointly owned by Smt. Santosh Prashar being the mother of

the defendants and by Nidish Prashar being the brother of the defendants; ii)

that Smt. Santosh Prashar died willing her 50% shares in the property to the

defendants equally; iii) that the defendants and their brother Nidish Prashar

decided to re-develop the property and identified a developer / builder and

the said brother of the defendants in this context got several documents

signed from the defendants; iv) that however Nidish Prashar passed away on

13th June, 2014 leaving the plaintiffs as his wife and children; v) that the

plaintiffs made unreasonable demand on the defendants and upon the

defendants not succumbing thereto have instituted this suit; vi) that it

appears that at the time when the Nidish Prashar got the documents signed

from the defendants, he obtained the signatures of the defendants on the

Family Settlement / Agreement also; vii) that since the defendants trusted

their brother, they signed the documents without seeing the contents thereof;

viii) that "it is on this basis the deponent has taken a stand in the suit that the

document dated 27.11.2012 is a forged and fabricated document. In this

background the deponent had instructed her counsel to carryout admission /

denial of documents and denying the settlement agreement as the deponent

had never agreed to such terms as was recorded in the purported family

settlement dated 27.11.2012".

12. The defendant no.1 in the affidavit has also tendered unconditional

apology for having directed her counsel to deny the purported Family

Settlement dated 27th November, 2012 without explaining the circumstances

in which the signatures of the defendant no.1 were obtained thereupon.

13. The affidavit of the defendant no.2 is on identical lines.

14. I have enquired from the counsel for the defendants, whether the

defendants in their written statement also have pleaded that though the

signatures on the Family Settlement / Agreement are theirs and / or pleaded

the circumstances in which their signatures were obtained thereon.

15. The counsel for the defendants fairly states that in the written

statement as existing it was not the case of the defendants that the signatures

had been obtained in the circumstances as stated in the affidavit aforesaid

and it is for this reason only that the applications aforesaid for amendment of

the written statement have been filed.

16. The counsel for the defendants on specific query has also stated i) that

the denial by the advocate for the defendants of the document was in terms

of the express instructions of the defendants; ii) that the defendants admit

that the signatures on the Family Settlement / Agreement are of the

defendants.

17. It is further the contention of the counsel for the defendants i) that the

aforesaid Family Settlement / Agreement was superceded by subsequent

documents; ii) that the aforesaid Family Settlement / Agreement was not

acted upon.

18. The counsel for the defendants again, on enquiry responds that in the

written statement as existing, it is not the case of the defendants that the

Family Settlement / Agreement though executed stood superceded or was

not acted upon.

19. The counsel for the defendants has relied upon kapil Corepacks Pvt.

Ltd. Vs. Harbans Lal MANU/SC/0556/2010 and Sudir Engineering

Company Vs. Nitco Roadways Ltd. MANU/DE/0414/1995 and has

contended that no case for proceeding against the defendants under Section

340 of the Cr.P.C. is made out.

20. I have in Punjab Tractors Ltd. Vs. M/s International Tractors Ltd.

167 (2010) DLT 490 taken a view that applications under Section 340 of the

Cr.P.C. cannot be entertained till the final decision of the suit and have been

following the said view till now. However the present is found to be a gross

case. Here, the defendants at the stage of admission / denial of documents

are found to have denied the document which when the defendants appeared

before this Court admitted to be bearing their signatures and the counsel for

the defendants also today in reply to a specific query has admitted that the

signatures on the documents are of the defendants. It is not the plea of the

defendants in their written statement as existing on the date of admission /

denial that though the signatures on the document are of the defendants but

the defendants still deny the document for the reasons which are now stated

and which the defendants are now seeking to plead by amendment of their

written statement.

21. I have enquired from the counsel for the defendants whether not the

defendants in the aforesaid circumstances were required to, at the stage of

admission / denial of documents, admit the document as bearing their

signatures and may be with a qualification that the defendants were

otherwise not bound by the contents of the documents.

22. The counsel for the defendants has argued that since the defendants

earlier as well as now deny the document, the defendants were justified in

denying the document.

23. I am unable to agree.

24. The stage of admission / denial of documents has been enshrined in

the Code of Civil Procedure, 1908 as a stage of the suit and on which stage

further proceedings in the suit i.e. of framing of Issues if any and of placing

of onus of the Issues so framed and of recording of evidence is dependent.

The purpose of admission / denial of documents is to curtail trial i.e.

recording of evidence of witnesses to prove documents which are not

disputed. The defendants, in the absence of any plea in their written

statement of being not bound by the contents of the document despite of

being signatories thereto, on the date of admission / denial of documents

were bound to admit the Family Settlement / Agreement and have falsely

denied the same. Even if it had been the plea of the defendants in the written

statement that though they are signatory of the document, are not bound with

the same for the reasons as are now given, the onus of proving the same

would have been placed on the defendants instead of on the plaintiffs. The

defendants, by committing falsehood at the stage of admission / denial, have

thus also interfered with the administration of justice.

25. The defendants, by practicing falsehood on oath in the written

statement and at the stage of admission / denial have sought to push the onus

to prove the document on the plaintiffs and attempted to take a chance that

in the event of the plaintiffs failing in proving the document which in fact

has been signed by them, they will benefit therefrom. The pleas now sought

to be taken by the defendants are an afterthought.

26. Such conduct of the defendants as litigants cannot be tolerated by

tendering a convenient apology when caught committing a crime. If the

courts do not exercise their powers against such conduct of the litigants, the

Courts will not only be failing in their duty to administer justice to the

citizens but also sending a wrong message to the litigants to continue

indulging in abuse of the process of the Courts.

27. Of the judgments relied upon by the counsel for the defendants, in

Kapil Corepacks Pvt. Ltd. supra action under Section 340 Cr.P.C. was held

to be not maintainable owing to the reason that the denial in that case of the

document was in the circumstance of being shown only the signatures by

hiding the contents thereof. Such is not the case here. Here, the document

filed by the plaintiffs was, intentionally and with a view to take advantage

and to take a chance of the plaintiffs failing to prove the same, denied with

full knowledge and as a deliberate act. It is only now as an afterthought that

the pleas of being not bound by the document are being taken. The said

judgment is thus of no application to the present circumstances. Similarly, a

Single Judge of this Court in Sudir Engineering Company supra held that

mere admission of document does not amount to its proof and again has no

applicability to the present controversy.

28. In the facts aforesaid, I am also of the view that this Court need not

wait till the end of the trial to defer filing of a complaint against the

defendants of the offence which appears to have been committed by them.

The defendants appear to have made false declaration and statement in the

written statement in denying the Family Settlement / Agreement knowing

that the signatures thereon were of the defendants. The defendants are also

found to have fraudulently and dishonestly and with an intent to injure the

plaintiffs made a claim which they knew to be false.

29. Accordingly, the Registrar General is directed to file a complaint of

the offences committed by the defendants and to send it to the Chief

Metropolitan Magistrate (CMM), Patiala House Court, New Delhi having

jurisdiction.

30. The defendants to appear before the Court of CMM / Metropolitan

Magistrate, Patiala House Courts, New Delhi on 7th October, 2016.

31. List the suit for further consideration on 8th November, 2016.

RAJIV SAHAI ENDLAW, J.

AUGUST 04, 2016 Bs/gsr (corrected and released on 27th August, 2016)