Delhi High Court
Nagender Kumar & Anr. vs Anita Tiwari on 16 October, 2019
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 16.10.2019
+ C.R.P. 164/2018 & CM APPL. 31832/2018
NAGENDER KUMAR & ANR ..... Petitioners
versus
ANITA TIWARI ..... Respondent
Advocates who appeared in this case:
For the Petitioner: Mr.Divakar Kumar, Adv.
For the Respondent: Mr.Mansoor Ansari, Advocate.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioners impugn order dated 10.05.2018 whereby the
application of the petitioners under Order 18 Rule 17 for recall of the
Witness and permission to lead further evidence to prove certain
documents has been dismissed.
2. Subject suit was filed by the respondent for recovery of
possession, arrears of license fee and mesne profits contending that
respondent is the owner of the subject property. It is contended that
the subject property was licensed to the petitioners on a monthly
license fee of ₹4000/- which was subsequently enhanced to ₹4500/-
for the purposes of having a regular watch and ward over the property.
3. Written statement was filed by the petitioners contending that
petitioner No.2 is the owner of the subject property. After the
evidence of the parties was concluded and matter was at the stage of
final hearing, subject application under Order 18 Rule 17 has been
filed by the petitioners contending that petitioners could not exhibit
certain documents in their evidence affidavit which was filed before
the Court. It is contended that the mistake was bonafide and
unintentional.
4. Learned counsel for the petitioners contends that the documents
which were sought to be exhibited are material and necessary and
have a direct bearing on the issues arising in the subject Suit.
5. The documents which are sought to be exhibited are (1) birth
certificates of the children of the petitioners, (2) a complaint to the
SHO dated 17.02.2010 wherein it is alleged that a theft had taken
place in the house of the petitioners and a suitcase containing certain
documents had been misplaced and (3) copy of a khatauni of the year
1980-81.
6. The Birth certificates that are sought to be produced by the
respondent show that though the date of birth of the children is
mentioned as 15.01.1999; 03.10.2000 and 29.02.2004, the date of
registration mentioned in the birth certificates is 09.04.2013 which is
after the filing of the suit. Clearly the petitioner has sought to register
the births of his children giving the residential address of the subject
property as an afterthought, after the filing of the suit and apparently
to create a paper trail. Even if the children are born in the subject
property, it would not establish any ownership rights.
7. With regard to the police complaint, it is seen that the
complaint does not refer to any particular document or document of
title that have been allegedly stolen but it merely makes a vague
allegation that a theft had taken place and "a suit case was not
available in which some of my necessary documents, horoscope of my
children, documents of my building, paper of gas connection, some
jewellery of Silver and five six pair of clothes."
8. The above complaint does not give detail or description of any
document or establish that documents of the subject property have
been lost. Learned counsel for the petitioners very candidly admits
that petitioners does not have even the photocopy of the documents
which are alleged to have been lost and there is no recorded
transaction of any payment having been made through any banking
channel or of any of the documents having been registered.
9. Further submission of the learned counsel for the petitioners is
that there is an electricity connection in the name of the petitioners in
this property, this is countered by learned counsel for the respondent
contending that petitioner had obtained the electricity connection by
forging certain documents for which a complaint has already been
made.
10. Be that as it may, merely because an electricity connection is
obtained by a person who is admittedly in possession does not
establish that the person is or was an owner of the subject property.
11. It is clear that petitioners by the subject application seek to fill
up the lacunae in the evidence of the witness which has already been
recorded. No valid ground has been mentioned by the petitioners as to
why the said documents were not tendered in the evidence affidavit.
Further as noticed above, I do not find that brining on record the
above documents will in any manner have any bearing on the issues in
the Suit as the said documents do not even prima facie establish that
petitioners have any ownership rights in the subject property.
12. I find no infirmity in the view taken by the Trial Court that
petitioner has not shown any valid or sufficient reason meriting
exercise of discretion to recall the witness and permitting him to file
his additional affidavit.
13. Further as pointed out by learned counsel for the respondent
that petitioner was cross examined about his title and even during his
cross examination, he did not state that he was in possession or was
ever in possession of any title document of the subject property.
14. I find no merit in the petition. The petition is accordingly
dismissed.
SANJEEV SACHDEVA, J
OCTOBER 16, 2019/rk
