Attar Singh & Anr. vs Bhupinder Singh & Anr.
2017 Latest Caselaw 3133 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                              Judgment delivered on: 10.07.2017

+       CS(OS) 1088/2011 and IA Nos. 16940/2011 & 8027/2016
ATTAR SINGH & ANR.                                               ..... Plaintiffs

                                versus
BHUPINDER SINGH & ANR.                             ..... Defendants
Advocates who appeared in this case:
For the Plaintiffs   : Mr Madan Lal Sharma and Mr Varun Nischal.
For the Defendants   : Mr Sunil Dalal and Ms Garima Goel.

CORAM:
HON'BLE MR JUSTICE VIBHU BAKHRU
                                          JUDGMENT

VIBHU BAKHRU, J

IA No. 12324/2016

1. The present application has been filed by the defendants under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereafter „the CPC‟) for amending the written statement filed by the defendants.

2. The plaintiffs have filed the above captioned suit for partition and permanent injunction in relation to certain properties. The plaintiffs have pleaded that the suit properties were inherited by the parties along with their late father from their forefathers. The plaintiffs have further averred in the plaint that there was an oral family understanding and arrangement whereby late Dilpat Singh (father of the parties) had given up and relinquished his shares in the suit properties in favour of the parties.

3. Subsequently, the plaintiffs filed an application for amending the plaint, principally, to incorporate certain changes in regard to the measurements of the suit properties and with respect to certain construction carried out by the defendants in some of the suit properties, which was alleged by the plaintiffs to be unauthorised and illegal. The amendments sought were allowed and the amended plaint was taken on record. The defendants also filed an amended written statement albeit belatedly.

4. In the original written statement as well as in the amended written statement, the defendants inter alia pleaded that the suit properties already stood partitioned pursuant to an amicable oral agreement. It is also claimed that the said oral agreement was acted upon and implemented.

5. The issues were inter alia framed on 29.05.2014, including the issue as to whether the suit properties stood partitioned pursuant to an amicable oral agreement.

6. The plaintiffs and defendants filed certain additional documents and on 13.10.2014, the learned Joint Registrar set down the matter for 26.03.2015 for admission/denial of the additional documents as well as for recording of evidence.

7. On 26.03.2015, plaintiff no.1 was present for recording of evidence (PW1), however, recording of evidence was not commenced at the request made on behalf of the defendants. Thereafter, on or around 24.07.2015, the defendants filed an application (IA no.15033/2015) for taking on record, the certified copy of a sale deed dated 11.11.2005 and a copy of the partition deed dated 20.06.1993. The plaintiffs opposed the said application on

several grounds including that the defendants had not made any averments in the pleadings with regard to the partition deed of the suit properties. The plaintiffs also opposed the filing of the two documents on the ground of delay.

8. The learned Joint Registrar considered the above application and allowed the same on 11.05.2016. The learned Joint Registrar held that although there was delay in filing the documents in question but the same would not prejudice the plaintiffs as the recording of evidence had not commenced. Insofar as the objection relating to the documents being beyond the pleadings filed by the defendants was concerned, the learned Joint Registrar held that the said objection could be taken at an appropriate stage. The learned Joint Registrar observed that the said documents appeared to be necessary for complete and proper adjudication of the disputes between the parties and, accordingly, allowed the said application albeit on payment of cost of ₹10,000/-.

9. The plaintiffs have filed an appeal (being OA no. 127/2016) against the order passed by the learned Joint Registrar on 11.05.2016. The principal ground urged by the appellants (plaintiffs) to assail the said order is that there are no pleadings regarding the partition deed dated 20.06.1993 and the sale deed dated 11.11.2005 was not relevant.

10. The defendants have filed the present application seeking to amend the written statement by specifically pleading that the oral partition of the suit properties was reduced into writing on 20.06.1993. The learned counsel for the parties are ad idem that the disposal of the present application would

have a bearing on the said appeal (OA no.127/2016); in the event, the defendants succeed in the present application and they are allowed to amend the written statement, the plaintiffs‟ objection to the order dated 11.05.2016 would not survive.

11. The plaintiffs have opposed the present application essentially on two grounds. First, that the amendment sought to be made to the written statement is contrary to the admissions made therein and second, that since the trial had commenced, amendments to pleadings would not be permissible unless the Court concludes that the averments made could not be raised in spite of due diligence on the part of the applicants. In the present case, admittedly, the document sought to be produced (partition deed) was in the possession of the defendants, however, the non-production of the document at the relevant time is claimed to be an inadvertent omission.

12. In terms of the proviso to Order VI Rule 17 of the CPC, "no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the parties could not have raised the matter before the commencement of trial". Thus the first and foremost question to be addressed is whether the trial has commenced and whether the present application was filed after commencement of the trial.

13. In Kailash v. Nanhku and Ors: (2005) 4 SCC 480, the Supreme Court had held as under:-

"At this point the question arises: When does the trial of an election petition commence or what is the meaning to be

assigned to the word "trial" in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word "trial"."

14. The aforementioned decision in Kailash v. Nankhu (supra) was referred to by the Supreme Court in a later decision in Vidyabai & Ors. v. Padmalatha and Anr.: (2009) 2 SCC 409, wherein the Supreme Court held that the date on which the issues are framed is the date of first hearing and the „filing of an affidavit in lieu of examination-in-chief of the witness' amounts to „commencement of proceeding‟.

15. In Ajit Narsinha Talekar v. Nirmala Wamanrao Kekade and Ors.: (2010) 5 Mah LJ 481, the Bombay High Court considered Vidyabai (supra) and held as under:-

"The Supreme Court has only said: "framing of issues is the first date of hearing" but that does not mean that on framing of issues the trial has commenced. Even after issues are framed, suits often are adjourned several times because of applications for adjournment made by either of the parties. Some times the matter is not even called out because the Court remains busy in dealing with older matters which are on board. Though the framing of issues is the first date of hearing, the actual hearing commences only when a party files an affidavit of himself or his first witness in lieu of examination in chief. That is the commencement of the trial."

This is also the view expressed by the Division Bench of the Bombay High Court in Mahadeo v. Balaji and Anr.: 2012 SCC OnLine Bom 1283.

16. The decision in the case of Vidyabai (supra) was also followed by a Coordinate bench of this Court in J.K. Kashyap v. Rajiv Gupta and Ors: (2013) 196 DLT 263.

17. In the facts of the present case, the issues were struck on 29.05.2014 and on the said date, this Court had permitted the parties to file additional documents within four weeks from that date and the list of witnesses within a period of six weeks and the matter was directed to be listed before the Joint Registrar on 13.10.2014. On 13.10.2014, the affidavit of plaintiffs‟ witness was filed and the matter was re-notified for admission/denial of additional documents and for recording of evidence of plaintiffs‟ witness on 26.03.2015. Plaintiff no.1 (PW1) was present in Court on 26.03.2015 for examination but the recording of evidence could not commence as the defendants' counsel was not present and, at the request made on behalf of the defendants, the matter was adjourned to 07.10.2015 for recording of evidence.

18. In view of the above, it is apparent that the trial commenced on 13.10.2014 as the affidavit of plaintiffs' witness was filed on that date and in any view, it commenced on 26.03.2015, when the plaintiffs' witness (PW1) offered himself for examination.

19. The next question that follows is, whether in the given facts, this Court can conclude that despite due diligence, the applicants (defendants)

could not have raised the pleas now sought to be raised by way of an amendment, prior to the commencement of trial? Plainly, this question would have to be answered in the negative. The only explanation provided by the applicants in the present application to amend the written statement at this belated stage is that while going through some old documents, a photocopy of the partition deed was discovered, which refreshed their memory that the oral partition was reduced into writing and the said document was immediately filed in this Court in the year 2015.

20. It is necessary to observe that in the application filed by the applicants (defendants) for taking the partition deed and the sale deed on record - that is, application no IA no.15033/2015 - the sole reason stated by the applicants for filing the documents at the belated stage was that the "Defendants filed additional documents on 06.08.2014 vide diary no. 132753 of 2014 but two documents were erroneously left out due to oversight and inadvertently".

21. The above explanation was accepted by the learned Joint Registrar as is apparent from the order dated 11.05.2016. It does appear that the applicants have taken inconsistent pleas in their applications: in IA no.15033/2015, they claimed that the documents were inadvertently not filed in August 2014 and in the present application they claim that the partition deed - which forms the basis of their present application - was discovered in 2015. Thus, it is difficult to accept the averments made by the applicants in their application at their face value. However, even if it is accepted that the applicants discovered the photocopy of the partition deed in 2015, the filing of present application is inordinately delayed. Concededly, the photocopy of

the partition deed was readily available with the applicants in July 2015 when it was filed in Court; however the present application has been filed on 30.09.2016, which is more than one year and two months after the said deed was filed in Court. There is no explanation whatsoever, why the application for amendment of the written statement was not filed at the material time. Thus, this Court cannot accept that despite due diligence, this matter could not have been raised by the applicants before commencement of trial. Thus, the present application is liable to be dismissed.

OA No.127/2016

22. In view of the above, the present appeal preferred by the plaintiffs is to be considered and cannot be rejected.

23. Sub-rule (1) of Rule 1A of Order VIII of the CPC mandates the defendant to produce all documents that are relied upon by the defendant in evidence at the time of filing the written statement. Further in terms of sub- rule (3) of Rule 1A of Order VIII of the CPC, the defendant is not permitted to produce any such document which has not been produced at the time of filing the written statement without the leave of court.

24. The defendants‟ case is that during the pendency of the suit, while going through some old documents, a photocopy of the partition deed was discovered. The said document was therefore filed in this Court in the year 2015.

25. The only reason furnished by the defendants for producing the partition deed dated 20.06.1993 at a later stage is that the fact of recording

of the oral partition in a written document had inadvertently slipped their minds.

26. The rule requiring a party to produce the documents along with its pleadings and before issues are framed is essentially a rule of procedure to ensure that no party is prejudiced. The Learned Joint Registrar had considered the same and permitted the respondents (defendants) to file the documents in question. He held that no prejudice would be caused to the plaintiffs (appellants) as recording of evidence had not commenced.

27. It is also well settled that the court can always permit production of documents at any stage, if it considers the same necessary for adjudication of the disputes between the parties.

28. The partition deed in question is a relevant document and would have a bearing on the controversy involved - considering that the defendants claim that it does reflect the oral partition entered into by the parties (which is expressly pleaded by the defendants). Thus, this Court is not persuaded to accept that production of the said document or the sale deed dated 11.11.2005 should be shut out at this stage. The question as to the admissibility or the evidentiary value of the said documents need not be considered at this stage. It is also not necessary to entertain any controversy regarding interpretation of the partition deed at this stage.

29. Needless to state that the appellants are also at liberty to file an additional affidavit of evidence. The contention that no value needs to be

attached to the partition deed or the sale deed, on account of lack of material pleadings is also open for being raised.

30. In view of the above, OA no.127/2016 stands dismissed.

CS(OS) 1088/2011

31. List on 10.08.2017.

VIBHU BAKHRU, J JULY 10, 2017 RK