Delhi High Court
Anuj Leekha vs Krishna Leekha (Dead) Thr Lrs & Ors on 6 February, 2018
$~27
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 6th February, 2018
+ CM(M) 143/2018
ANUJ LEEKHA ..... Petitioner
Through: Mr. Suhail Dutt, Senior Advocate
with Mr. Sudarsh Menon, Mr. Ram
Gupta & Mr. Sankalp Goswami,
Advocates.
versus
KRISHNA LEEKHA (DEAD) THR LRs & ORS
.... Respondents
Through: Ms. Rachna Aggarwal, Advocate for
R-1.
Mr. Sumit Sinha, Advocate for R-2.
Mr. S.G.Asthana, Advocate for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
CM No.4639/2018 (exemption)
Allowed, subject to all just exceptions.
CM(M) 143/2018 & CM No.4638/2018 (stay)
1. The petitioner is the plaintiff in civil suit (CS No.208909/2016)
which was instituted in 2008 seeking recovery of Rs.66,46,023/-, the
respondents being the surviving defendants contesting the same. The
plaintiff had impleaded Krishna Leekha and ICICI Bank Limited as
first and fifth defendants, the former having died and latter ICICI
Bank Limited dropped from the fray, Krishna Leekha (deceased
defendant) now being represented by her legal heirs, the respondents.
2. The petitioner as plaintiff had submitted his affidavit in July,
2015 for being tendered in evidence. It appears that along with the
affidavit he had filed certain documents, proof in regard to some of
which was dependent upon certain official witnesses to be summoned
and examined. The affidavit, it turns out, would not refer to the
documents which were made part thereof as "exhibits". It may also be
added here that the documents in question were earlier put to the
defendants at the stage of admission/denial but the same were not
admitted and, therefore, it became the responsibility of the plaintiff to
adduce strict proof in their respect.
3. When the matter came up for recording of the evidence of the
petitioner (as PW-1) on 01.02.2018, it came to be submitted that the
defendants were ready to admit some of the said documents. The trial
judge noted this submission in the proceedings recorded on
01.02.2018 but then pointed out that the documents had not been
referred to as "exhibits". It is against this backdrop that the petitioner
wanted withdrawal of the said affidavit eventually to be replaced by a
fresh affidavit which was not acceptable to the trial judge, assumably
on objections being taken by the defendants. It is the said view taken
by the Additional District Judge which is sought to be assailed through
the petition at hand.
4. The respondents have appeared on advance notice through their
respective counsel. They have been heard. All sides agree, through
their counsel, that though the evidence could be tendered by affidavit,
the exercise of labelling documents as exhibits (or marks) is a
responsibility of the Court which is to be undertaken as the deposition
progresses, it being contingent upon satisfaction being recorded about
the admissibility and relevancy of the documents as indeed the mode
of the proof.
5. In these circumstances, all sides now agree that there would be
no need for the affidavit already on record to be taken off or it to be
replaced by a fresh affidavit wherein such documents would be
referred to as exhibits or marks. The documents can be appropriately
labelled upon the affidavit and the documents in question being
tendered in evidence by the petitioner (plaintiff) appearing as his own
witness (PW-1). But, given the fact that the defendants in the suit are
now inclined to admit some of the documents for which the plaintiff
otherwise would be obliged to summon official witnesses, it would be
proper that the parties undertake a fresh exercise of admission/denial
in their respect before the petitioner enters the witness box.
6. Ordered accordingly.
7. The petition and the application are disposed of with above
observations.
8. Dasti, under the signatures of Court Master.
R.K.GAUBA, J
FEBRUARY 06, 2018
srb
