Delhi High Court
Raj Pal & Anr. vs Deepak Makwana on 28 September, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 28, 2016
+ EX.S.A. 2/2016 & C.M. 7504/2016
RAJ PAL & ANR. .....Appellants
Through: Mr. Harish Malhotra, Senior
Advocate with Mr. Vishal Gera,
Advocate
Versus
DEEPAK MAKWANA ..... Respondent
Through: Mr. Anil Misra, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
Appellant-Judgment Debtor's objections under Order 21 Rule 58
r/w Section 47 of CPC have been dismissed by Executing Court and the
dismissal of the objections has been upheld by Appellate Court vide
impugned order of 25th January, 2016.
Learned senior counsel for Appellants-Judgment Debtors submits
that the dispute is regarding shop No.33, Teliwara, Shahdara, Delhi and
as per appellants' site plan, the area of the said shop is 5'X4" and
appellants are ready to surrender the said shop to the Respondent-Decree
Holder. It is pointed out by learned senior counsel for appellants that a
prayer was made to the Executing Court to put the parties to evidence on
appellants' objections regarding identification of Shop No.33 and that
during suit proceedings no site plan was filed and Executing Court has
simply proceeded on the basis of Shop number and has relied upon the
Rent Agreement of 2nd December, 1987 to conclude that the area of Shop
No. 33 is 22.7 Sq. Yards. It is submitted by learned senior counsel for
appellant that reliance upon Rent Agreement of 2nd December, 1987 is
erroneous, as the said Rent Agreement was de-exhibited on the objection
of respondent-decree holder.
It is urged that the First Appellate Court in the impugned order has
erroneously held that a document filed by a party, though un-exhibited/
de-exhibited can be relied upon for collateral purposes. To hold so,
reliance has been placed by the First Appellate Court on a decision of this
Court in Mangal Singh Vs. Tek Ram AIR 1973 Delhi 267. It is pointed
out by learned Senior Counsel for appellants that in Mangal Singh
(supra), it was an un-exhibited document whereas de-exhibited document
cannot be relied upon. Reliance is also placed by learned senior counsel
for appellants upon a decision of this Court in RSA No. 130/2007, titled
as Sarla Devi Vs. Budhan, rendered on 28th April, 2011 to point out that
upon de-exhibition of a document, it no longer remains on record. Thus,
it is submitted on behalf of appellants that the impugned order as well as
order of the Executing Court deserves to be set aside and an opportunity
ought to be granted to appellants to lead evidence to show that the area of
Shop No.33 is 5'X4".
On the contrary, learned counsel for Respondent-Decree Holder
supports the impugned order and submits that premises Municipal No.33
comprises of two rooms, one shop and one shed, whose dimensions are
given in the Municipal Certificate Report, which is on the record of the
First Appellate Court. It is pointed out that an objection has been taken
by appellants that there is a passage between Shop No. 32 & 33, which
leads to property No.28 but this objection has been taken for the first time
and is without any basis because there is no passage reaching property
No. 28 via Shops No. 32 & 33. Thus, it is submitted that Respondent-
Decree Holder is entitled to possession of premises No. 33, in which the
shop in question is located.
Upon hearing and on perusal of impugned order, Executing Court's
order and the material on record, I find that impugned order notes that the
Rent Agreement is a de-exhibited document but relies upon Mangal
Singh (supra), which pertains to an un-exhibited document. This Court in
a later decision in Sarla Devi (supra), has reiterated that a de-exhibited
document clearly means that the said document does not exist on the
record of the case. Both the courts below have erred in relying upon a de-
exhibited document to dismiss appellants' objection. Copy of the
Municipal Certified Plan of the property No.29 & 33 placed on record in
the suit proceedings could not have been relied upon as its perusal shows
that it relates to composite numbers 29 to 33 and so, the dimension of
different shops and rooms, as given in this Municipal Plan, does not
clearly indicate to which municipal number the room or the shop relates
to.
In such a situation, there is no option except to let the parties lead
evidence on the objections so filed by the appellants. In the aforesaid
view of the matter, impugned order as well as order of the Executing
Court is hereby set aside and appellants' objections are restored for being
tried after affording an opportunity to parties to lead evidence on these
objections. Parties through their counsel shall appear before the
Executing Court on 19th October, 2016. Considering that these objections
relate to a decree of 7th February, 2003, the Executing Court shall made
all the endavours to take the evidence on these objections within a period
of six months from the date fixed for evidence on the objections.
With aforesaid directions, this appeal and application are disposed
of. Trial court record be remitted back forthwith.
(SUNIL GAUR)
JUDGE
SEPTEMBER 28, 2016
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