Vinay Kumar Gupta vs Sudama Prasad Gupta
2018 Latest Caselaw 2523 Del

$~10
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          Date of Decision: 23rd April, 2018
+                         RFA 831/2016
       VINAY KUMAR GUPTA                                      ..... Appellant
                          Through:     Mr. Mahendra Bairwa, Advocate (M-
                                       9810019309).

                          versus

       SUDAMA PRASAD GUPTA                   ..... Respondent
                   Through: Mr. Ashish Virmani & Ms. Sukriti
                            Gandhi, Advocates (M-9810631642).

       CORAM:
       JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

CM APPLs. 39261/2016 (Stay), 42134/2016, 26801/2017 in RFA 831/2016 and RFA ______/2018 (to be numbered)

1. The cross objections be registered as a separate RFA. The appeals arise out of a common judgment dated 16th March, 2016 by which the suit for possession filed by the Appellant/Plaintiff (hereinafter, „Plaintiff‟) was dismissed.

2. The brief background of the suit is that the Plaintiff, Mr. Vinay Kumar Gupta claimed that his grandfather, Sh. Binodi Lal had purchased the suit property bearing no.11192 and 11212 situated at Mandir Marg, Dori Walan, Karol Bagh, New Delhi (hereinafter, „suit property‟). The case of the Plaintiff is that the original owner of the suit property was Sh. Chajju Ram, S/o Lala Nathu Ram. Plaintiff further claims that during the lifetime of

his grandfather i.e. Sh. Binodi Lal, a Will was executed by him on 17th June, 1932 bequeathing the property in favour of his elder son, Sh. Ghanshayam Dass, the father of the Plaintiff.

3. Sh. Binodi Lal died on 10th January, 1978 and Plaintiff's father became the sole and exclusive owner of the suit property. Thereafter the Plaintiff's father, it is pleaded, had executed a Will dated 21st September, 2000 bequeathing the property to the Plaintiff, Mr. Vinay Kumar Gupta, his brother Mr. Ajay Gupta and Mr. Vivek Gupta, nephew of the Plaintiff. All the three became co-owners of the suit property after the death of Sh. Ghanshayam Dass on 5th November, 2000. Thereafter, it is the case of the Plaintiff that one Sh. Krishan Kumar and his son Sh. Raj Kumar, who were tenants in the suit property and were paying the monthly rent to the Plaintiff, had vacated the suit property without intimation to the Plaintiff. Since the suit property was lying vacant, the Respondent/Defendant (hereinafter, „Defendant‟) trespassed/encroached upon the suit property. An FIR was also registered on 7th September, 2004 in respect of this trespass which is still pending.

4. The present suit for possession was filed by the Plaintiff as co-owner of the property seeking the following reliefs:

"It is, therefore, most respectfully prayed that in the interest of justice, this Hon'ble Court may be pleased to :

a) Pass a Decree for Possession in favour of the plaintiff and against the defendant in respect of suit property i-e. Room No.10 (Pvt) at first floor and Room No.17 (Pvt) at first and second floor forming part of property bearing No.11212, Gali Kaptan Wali, Dori Walan, Karol Bagh, New Delhi, as shown in red colour in the site plan attached herewith;

b) Pass a Decree of Permanent Injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his agents, representatives and associates, etc. etc. from creating any third party interest and parting with the possession of the suit property i.e, Room No.10 (Pvt) at first floor and Room No.17 (Pvt) at first and second floor forming part of property bearing No.11212, Gali Kaptan Wali, Dori Walan, Karol Bagh, New Delhi, as shown in red colour in the site plan attached herewith;

c) Award damages/mesne profits at the rate of Rs. 15,000/- (Rupees fifteen thousand only) per month with interest @ 15% p-a. in favour of the plaintiff and against the defendants towards use and occupation charges in respect of suit property from the date of filing of the suit till vacation of the suit property;

d) award costs of the suit in favour of the plaintiff and against the defendant; Pass any other and further relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in favour of the plaintiff and against the defendant."

5. Proceedings in the suit commenced and despite service the Defendant did not appear. The Defendant was accordingly proceeded ex-parte on 2nd May, 2015. On 28th September, 2015, the Defendant was present in court along with his counsel and moved an application under Order IX Rule 7 of CPC. The said application was dismissed on 21st January, 2016.

6. The Plaintiff examined the following witnesses:

 PW-1, Sh. Vinay Kumar Gupta;

 PW-2, Sh. Ramesh Kumar, Assistant Ahlmad in the court of Shri Puran Chand, CMM (Central), Tis Hazari Courts;  PW-3, Sh. Krishan Kumar, UDC from the House Tax Department, NDMC;

 PW-4, Sh. Shivajeet Yadav, Record Custodian Department of Delhi Archives;

 PW-5, Sh. Sameer Singh, DEO from the Sub-Registrar's office.

None of the Plaintiffs were cross-examined by the Defendant. Since the Plaintiff's evidence had already been recorded and the Defendant was ex- parte, the matter was finally heard and the suit was dismissed on 16th March, 2016.

7. The main ground on which the suit was dismissed was that the Plaintiff had failed to produce an attesting witness to the Will by which Sh. Ghanshayam Dass had bequeathed the property in favour of the Plaintiff.

8. The present two appeals have now been filed - one by the Plaintiff against the impugned judgment dismissing the suit and the second appeal by the Defendant seeking setting aside of order dated 21st January, 2016. This court has seen the order dated 21st January, 2016. It is the case of the Defendant before this Court that he has purchased the property from Sh. Krishan Kumar and accordingly, should be permitted to file the written statement and lead evidence in support of his defence. The Defendant, admittedly, is in possession of the property since 2000.

9. The Plaintiff on the other hand claims to be the legitimate owner of the suit property. The Plaintiff no doubt ought to have led evidence of the attesting witness to prove the Will. Counsel for the Plaintiff submits that it was only due to inadvertence and wrong advice that the attesting witness was not produced. It is further submitted by the counsel for the Plaintiff that the Plaintiff has been extremely diligent in prosecuting the suit as it is evident from the fact that five witnesses were examined by the Plaintiff including the custodian of records to prove the initial sale of 1932 and the

officer from the Sub-Registrar's office where the Will was registered. Even the House Tax official was summoned to prove the mutation of the property. The Ahlmad from the CMM Court was produced to establish the FIR against the Defendant. Under such circumstances, he submits that an attesting witness be permitted to be produced by the Plaintiff.

10. The Court has considered the overall conspectus of the case. The Defendant had not appeared in the matter and was proceeded ex-parte hence even the written statement of the Defendant is not on record. The property is valuable for both the parties and the fact that cross appeals have been filed by both the parties shows that both parties are aggrieved by the judgement of the Trial Court. Moreover, the title to the property ought not to be decided on the basis of a procedural defect but rather on merits. Though the defendants were present, they were proceeded exparte and hence they could not defend the suit. The Plaintiff's suit was dismissed despite all the witnesses produced, who were again not cross examined as the Defendant was ex-parte when the examination of witnesses took place.

11. This Court is thus of the opinion that both parties can be given an opportunity to establish their respective cases. Though, an application under Order XLI Rule 27 is not to be entertained to plug any loop holes which remained during the trial of the case, considering that this is a suit for possession and the allegation is that the Defendant is a trespasser, this Court is of the opinion that substantial justice can be done by permitting the Defendant to file the written statement within a period of three weeks and proceed further in the matter. As held in Mahavir Singh & Ors. v. Naresh Chandra (2001) 1 SCC 309 additional evidence may be permitted by the Appellate Court for various reasons and one such reason would be the

inability of the Court to pronounce judgment owing to a lacuna or defect in the evidence as it stands. The Supreme Court observed as under:

"5. Before we proceed further we would like to refer to the scope of an application under Order XLI, Rule 27 CPC. Section 107 CPC enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XLI, Rule 27 CPC. Principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court and cannot take evidence on appeal. However, Section 107(d) CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the court, which is, of course, to be exercised judiciously and sparingly. The scope of Order XLI, Rule 27 CPC was examined by the Privy Council in Kesowji Issur v. G.I.P. Railway AIR 1931 PC 143, in which it was laid clown clearly that this rule alone can be looked to for taking additional evidence and that the court has no jurisdiction to admit such evidence in cases where this rule does not apply. Order XLI Rule 27 CPC envisages certain circumstances when additional evidence can be adduced:

(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time

when the decree appealed against was passed, or

(iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

In the present case, it is not the case of either party that the first situation is attracted. So far as the second circumstance noticed above is concerned, question of exercise of due diligence would not arise because the concerned scientific laboratory from which examination is sought to be made itself was not in existence at the time of trial and so that clause is also not attracted. In the third circumstance the appellate court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The expression "to enable it to pronounce judgment" has been subject of several decisions including Syed Abdul Khader v. Rumi Reddy and Ors. [1979]2SCR424 wherein it was held that when the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence. [See: The Municipal Corporation of Greater Bombay v. Lala Pancham and Ors. [1965]1SCR542]."

12. In this case, the Defendant's written statement and evidence is not on record. The Plaintiff has produced all the witnesses to establish the veracity of the Will except an attesting witness, which it says was left out due to inadvertence and/or oversight. It is completely possible that the Plaintiff may not have been advised to produce an attesting witness. Simple dismissal of the suit would not be the answer in such a case as it is not clear that the

Defendant is entitled to enjoy the suit property and hence allowing the Defendant to, enjoy the title and possession to the suit property, merely by means of default would result in miscarriage of justice.

13. The Ld. Counsel for the Defendant has relied upon Agya Ram Sood v. Sameer Wason 168 (2010) DLT 156 (hereinafter, „Agya Ram Sood‟) to argue that if the evidence was left out of inadvertence, then the same cannot be permitted to be produced at the appellate stage. In Agya Ram Sood (supra), the facts reveal that the written statement was sought to be amended at the appellate stage and an application for additional evidence was filed. It was also a case where the very lawyer who was conducting the case sought to examine himself as a witness at the appellate stage, hence there was no scope of even arguing the existence of due diligence. The said case is distinguishable on facts.

14. In the circumstances of the present case, the matter deserves to be remanded to the Trial Court, both for the purpose of permitting the Plaintiff to adduce the evidence of an attesting witness as also permitting the Defendant to file its defence and adduce evidence in support thereof. It is thus directed that the evidence already recorded in the suit shall be read at the time of final hearing. The Defendant is permitted to file its Written Statement within 4 weeks. The Plaintiff may produce the attesting witness to prove the Will, who may be cross examined by the Defendant. If the Defendant wishes to cross examine any other witness of the Plaintiff, they shall be summoned by the Trial Court. The Defendant is thereafter permitted to adduce its evidence. The Trial Court shall endeavour to complete the trial within six months from today.

15. Both the appeals are allowed in the above terms with no orders as to

costs.

16. Trial Court record be sent back. List for directions before Trial Court on 21st May, 2018. All pending applications are disposed of.

PRATHIBA M. SINGH JUDGE APRIL 23, 2018 Rahul