Sunita Rekhi And Anr. vs Y.D. Puri And Ors.
2024 Latest Caselaw 3530 Del

Delhi High Court

Sunita Rekhi And Anr. vs Y.D. Puri And Ors. on 22 April, 2024

Author: Neena Bansal Krishna

Bench: Neena Bansal Krishna

                          $~11

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                          Date of decision:22nd April, 2024
                          +            CS(OS) 1789/2006, I.A. 9724/2021, I.A. 21956/2023,
                                        I.A. 1661/2024, I.A. 2093/2024, I.A. 1661/2024

                                 SUNITA REKHI AND ANR.                                    ....Plaintiffs
                                               Through: Counsel for plaintiffs.

                                                    versus

                                 Y.D. PURI AND ORS.                                .....Respondents
                                                Through:        Mr. Manish Vasist, Senior Advocate
                                                                with Sh. Rajesh Rawal, Advocate for
                                                                D2, D4 & D5.
                                                                Mr. Mohit Chaudhary, Mr. Kunal
                                                                Sachdeva and Mr. Aashish Arya,
                                                                Advocates for D3.
                                                                Mr. Bharat Gupta, Mr. Varun Tyagi,
                                                                Mr. Vishesh Chauhan and Mr. Yugal
                                                                Chaudhary, Advocates for D6.
                                 CORAM:
                                 HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
                                                    J U D G M E N T (oral)

I.A. 18377/2023 (under Section 151 CPC on behalf of plaintiff seeking to recall Mr. Chetan Puri, DW2 for his further cross-examination) & I.A. 19159/2023 (under Section 151 CPC on behalf of the defendant No. 6 seeking to recall Mr. Chetan Puri, DW2 for his further cross-examination based on the Bank Statement of Defendant No. 2 shared by counsel for defendant Nos. 2, 4 and 5)

1. By virtue of the aforementioned two applications, plaintiff as well as defendant No.6 Rita Mehra have sought recall of DW-2 Mr. Chetan Puri who is defendant No.4 for further cross-examination.

2. The plaintiff has filed the present suit for Declaration of the Gift Deed dated 10.10.2005, executed by the defendant No. 1 Sh. Y.D. Puri in favour of defendant No. 3, as null and void and a Decree for Partition and Inunction against the defendants. Sh. Y.D. Puri, who is defendant No.1 (since deceased) and his wife Mrs. Raj Puri (who is defendant no.2 ), had three daughters namely the plaintiff; Ms. Gita Naik, and defendants No. 5& 6 who are Ms. Sunita Rekhi and Ms. Rita Mehra; and two sons namely Mr. Vinod Kumar Puri, Mr. Chetan Puri, who are defendant Nos. 3, and 4, respectively.

3. DW-2, Mr. Chetan Puri has been cross-examined in extenso by learned counsel for the plaintiff on 11.04.2023 as well as learned counsel for the defendant No. 6, Ms. Rita Mehra, on various dates from 24.03.2023 to 27.04.2023, which got concluded on 27.04.2023.

4. It is submitted that Mr. Chetan Puri, during his cross-examination by the learned counsel for defendant No.6, had stated that he can produce the same dated from the year 2011 onwards of Mrs. Raj Puri, defendant No. 2. However, despite admitting the availability of these Bank Statements, the same were not produced by DW-2 even though he was cross-examined at length. Further, it is only after his cross-examination was concluded, the requisite Bank Statement of Smt. Raj Puri from 2011, was filed on record on 06.06.2023.

5. It is submitted that since the Bank Statement has been filed after the conclusion of the cross-examination of DW-2, it has now become pertinent to recall the DW-2, to confront him with the Bank Statement of Mrs. Raj Puri, which has now been produced, to corroborate the assertions of the plaintiff and defendant No. 6 that the funds generated by sale of part of

ancestral property comprising of 15 Bighas of land in Khewat 922, Khata No. 1465, Khasra No. 3816/1732, adjoining Kiran Cinema/Raj Cinema, have been used for purchase of the Property No. E-319, Basement and Upper Ground Floor, East of Kailash, New Delhi. DW-2 Sh. Chetan Puri intentionally withheld the Bank Statements and has subsequently placed them on record to the prejudice of defendant No. 6 as well as the plaintiff. Therefore, both the plaintiff as well as defendant No. 6, have sought recall of DW-2, Mr. Chetan Puri, to confront him with the Bank Statements which has been placed on record, after his cross-examination was concluded.

6. The application is contested by the defendant No. 4, who in his Reply to respective applications has submitted that there is no ground to recall DW2 for further cross-examination, much less on account of the filing of the Bank Statements of defendant No. 2. It is submitted that since the Bank Statement were sought by the defendant No.6 from 2011 onwards, it took some time to find out all the Bank Statements of the last 12 years. Furthermore, defendant No. 6 was always aware of the Bank account of the defendant No. 2 with Axis Bank and the Bank Statement of the account of the defendant No. 2, was in the possession of defendant No. 6.

7. It is asserted that in fact only on 24.04.2023, during the cross- examination, questions were put to DW-2 on the aforesaid Bank Account and directions were given to produce the Bank Statements. The defendant No. 6 had put more than 300 questions to him in the cross-examination and if the Bank Statement was so material for confronting the witness, then sufficient time should have been accorded to the witness for the production of the Bank Statement.

8. It is further submitted that on conclusion of evidence of defendant No.

4, Mr. Chetan Puri, he went back to Portugal and on 30.04.2023, he came to know from his daughter Ms. Amy, who was in Germany, had got injured and suffered fracture in her spine on 24.04.2023. Immediately thereafter, defendant No. 4 rushed to Germany and returned to Portugal on 05.05.2023. After returning from Germany, defendant No. 4 was very disturbed because of the injuries suffered by his daughter. Thereafter defendant No. 4 started looking for the Bank Statements in the various boxes, in which the belongings of defendants have been packed on account of shifting of the house. The belongings were lying scattered in various boxes and it took him time to locate the Bank Statement and thereafter, the same was filed in the Court on 06.06.2023. It is asserted that the defendant No. 4 was not afforded advance intimation/notice to produce the Bank Statement and the defendants cannot take advantage of their own wrong in seeking further cross- examination of defendant No. 4, Mr. Chetan Puri.

9. Learned counsel on behalf of the defendant has further stated that the plaintiff had not put any questions in the cross-examination of DW-2, in respect of the Bank Statements and therefore, he cannot be now making a ground for further cross-examination. Thus, the application on behalf of the plaintiff is liable to be dismissed.

10. On merits, all the averments made in both the applications, are denied.

11. Reliance has been placed on Maria Margarida Sequeira Fernandes & Ors. vs. Erasmo Jack De Sequeira, (2012) 5 SCC 370, to submit that Section 30 CPC provides for limited power to Order, discover and the like and the present case does not fall within the scope of Section 30 CPC.

12. Learned counsel has also relied upon Smt. Shashi Sehdev vs. Sh.

Narender Kumar Sharma in CM(M) 612/2022, decided by the Co-ordinate Bench on 06.07.2022, to argue that the power under Order 18 Rule 17 CPC, to recall a witness cannot be used to fill up the lacunae /gaps in evidence.

13. Submissions heard.

14. Admittedly, DW-2, Mr. Chetan Puri was cross-examined by the plaintiff on 11.04.2023, and from 12.04.2023 to 17.04.2023 and by the learned counsel for the defendant No.6 from 24.04.2023 to 27.04.2023. It is when the defendant No. 2 was cross-examined on 24.04.2023, that he was asked to produce Bank Statements of defendant No. 2, Mrs. Raj Rani from 2011 onwards for the first time, to which the DW-2 had stated that he can produce the Statements. He was again further cross-examined on 25.04.2023 and asked about whether he had contacted the Bank to produce the Bank Statement of Defendant no.2 to which he had said "No". He thereafter, was further cross-examined on 27.04.2023, wherein again when asked about the production of the Bank Statements, he stated that he was making all efforts to find the Bank Statements. The existence of the Bank Statements was, therefore, admitted and have in fact, been produced and submitted in the Court on 06.06.2023, that is after the completion of the cross-examination of DW-2 on 27.04.2023.

15. It is a settled proposition of law that the witness cannot be recalled for further cross-examination merely for the purpose of filling up the lacuna which may have remained in the cross-examination, as held in the case of Smt. Shashi Sehdev (Supra). Once, the witness has been duly cross- examined, recalling of the witness for further cross-examination, has to be justified.

16. In the present Case, the defence of the defendant No. 6 as well as of

the plaintiff is that the Property in East of Kailash had been purchased from the funds received from the sale of the part property of 15 Bighas land which was claimed to be ancestral. Though it has been admitted that the defendants have received their respective shares on sale of the part property of 15 Bighas of land, but it is nowhere admitted that the money so received, was used to purchase the East of Kailash Property.

17. Learned counsel for the defendant No. 2 has argued that the sale proceeds which came to the share of defendant No. 2, were admittedly received by in her Bank Account, but whether the same amount of money had been used for purchase of the East of Kailash Property, is not an admitted fact and this is sought to be established by defendant No. 6 as well as by the plaintiff, by confronting defendant No. 2, Mrs. Raj Puri, with the bank Statements.

18. Undisputedly, the Bank Statements had been sought in the cross- examination of DW-2 on 24.04.2023 and again on 25.04.2023 and on 27.04.2023. Since the witness was not forthcoming with the Bank Statements even though their production was sought, there was no reason for defendant No. 6 or for the plaintiff, to further defer the cross-examination. Non-production of documents sought in cross-examination, if not produced by DW-2, would lead to a presumption against the defendant No. 2. It is only when these documents have been subsequently placed on record that the occasion has arisen for the defendant No. 6 and plaintiff, to confront the witness with the Bank Statements to clarify and to explain the amounts, which have been reflected in the Bank Statement. Once, the document itself has been produced subsequent to the cross-examination, it cannot be said that the request for further cross-examination is to fill up the lacuna; rather it

is to seek clarification and explanation of the amounts as reflected in the Bank Statements.

19. In these circumstances, once the document has been produced subsequent to the completion of the cross-examination, it has become imperative to permit the plaintiff as well as defendant No. 6, to cross- examine DW-2, Mr. Chetan Puri to the limited extent of the Bank Statements.

20. It is pertinent to note that Section 30 of the CPC, deals with power to order Discovery and the like. It provides that the court may, at any time, either of its own motion or on the application of any party, direct discovery, inspection, production, impounding and return of documents or issue summons to a person to give evidence or to produce documents or such other objects as required. It is nowhere connected to the right of further cross-examination as provided under Order 18 Rule 17, CPC. Further, the documents i.e. the Bank Statement, which was in power and possession of DW-2, were not produced despite being asked even though it is material to prove the disputed facts in the present case. The Judgment of Maria Margarida Sequeira Fernandes & Ors. (supra) has relied by the defendant, is not applicable to the facts and circumstances of the present case.

21. Both the applications are hereby, allowed and the defendant No. 6 and the plaintiff are granted one opportunity for further cross-examination of DW-2, Mr. Chetan Puri, to the limited extent of the Statement of Account. No question beyond the Statement of Account shall be permitted by the learned Local Commissioner to be put to DW-2.

I.A. 8400/2024 (under Section 151 CC filed on behalf of defendant No. 3 seeking Directions on defendant No. 4 to allow defendant No. 3 to meet

defendant No. 2 mother of defendant No. 3)

22. An application has been filed on behalf of the defendant No. 3 directing defendant No. 4 to not restrain defendant No. 3 from meeting their other in Portugal in June, 2024.

23. Notice of the application is accepted by learned counsel appearing for defendant Nos. 2 and 4 and seeks time to file Reply to the same.

24. Reply to the application be filed within 15 days.

25. List on 22.05.2024.

CS(OS) 1789/2006

26. The evidence is already being recorded before the learned Local Commissioner. DW-2 be recalled on one date and allowed to be cross- examined on the Bank Statements alone. No further opportunity shall be granted to the plaintiff and Defendant no.6 for cross examination of DW-2.

27. It may also be noted that the Amended Plaint is not on record. Plaintiff to pursue the same with the Registry and get it filed if not already on record.

28. List on 22.05.2024.

(NEENA BANSAL KRISHNA) JUDGE APRIL 22, 2024/RS