High Court of Delhi was dealing with the petition filed under Article 227 of the Constitution of India impugning orders of the Trial Court, whereby the applications of the petitioners/defendants for placing on record documents, have been dismissed.
Brief Facts:
The suit from which the present petitions arise was filed on 19th April, 1995 by the plaintiffs against the defendants for mandatory and permanent injunction. Written statement was filed by the defendants 4th May, 1995. Thereafter, issues were framed in the suit on 1st April, 2004 and evidence by way of affidavit of evidence was filed on 14th May, 2004, which was finally closed on 05th September, 2018. On 23rd February, 2019, the Trial Court allowed the application of the defendants for filing list of witnesses, subject to costs of Rs.8,000/- as it was filed at a belated stage. The matter was put up for defendants’ evidence and on 03rd June, 2019, the Trial Court was informed by the counsel for the defendants that the documents sought to be relied on by the defendants were not on record. Therefore, the counsel for the defendant’s sough time to inspect the court file. Counsel for the defendants moved an application under Order VIII Rule 1A and Rule 3 read with Section 151 of the CPC in August, 2019 for placing on record two sale deeds. The Trial Court dismissed the said application. Against the impugned order, the defendants preferred a review under Order XLVII read with Section 114 of the CPC, which was also dismissed by the Trial Court. Subsequently, the defendants engaged a new counsel and two applications were moved on behalf of the defendants, under (i) Order XIII Rules 1 and 2 of the CPC for placing on record certain documents; and, (ii) Section 151 of the CPC for allowing defendants to lead evidence. Both the aforesaid applications were dismissed by the Trial Court vide the impugned order dated 09th November, 2021.
Trial Court’s Decision:
The trial court observed that on one hand, the defendants contend that the aforesaid documents were placed on record at the time of filing of the written statement and the same might have been misplaced from the judicial file and on the other hand, the defendants have contended that the said documents might have not been placed on record inadvertently by the earlier counsel. There is no mention of any sale deed executed in favour of the defendant no.3, in the written statement of the defendants and it is hard to believe that the defendants did not inspect the file after filing their written statement way back in 1995.
Respondent’s Contention:
Learned Counsel for the respondent submitted that both the plaintiffs and the defendants were tenants in respect of the same property. The factum of the sale deed in favour of the defendants has been specifically pleaded in the written statement, which is a registered document. Therefore, the finding in the impugned order, that there was no reference to the sale deed in the written statement of the defendants, is erroneous. It was submitted that since the aforesaid document is relevant for the adjudication of the suit between the parties, liberal view should have been taken by the Trial Court in allowing the additional documents.
It was submitted that the text of Order XIII Rule 2, as it read prior to the Code of Civil Procedure (Amendment) Act, 1999 was more liberal in allowing documents to be filed at a belated stage. Order XIII Rule 2 was removed by the amendments made to the CPC by the 1999 Amendment Act, but since the present suit was filed in 1995, the provisions of Order XIII Rule 2 of the CPC, as it read prior to the 1999 Amendment Act, would be applicable in the present case.
Petitioner’s Contention:
Learned counsel for the petitioner submitted that the written statement was filed on 4th May, 1995. Since it was not pleaded by the defendants in the written statement that the said documents were not in their possession though relied upon by them, the same could not be placed on record at this stage. Defendants had knowledge about the said documents from the very beginning and no explanation has been given for not filing the same for several years. It was submitted that the stand taken by the defendants in the application under Order VIII Rule 1A is inconsistent – on one hand it is stated that the documents were not filed by the earlier counsel and on the other hand, it is stated that the said documents were misplaced from the judicial file.
HC’s Observations:
After hearing both the sides the HC observed that by belatedly filing applications under Order VIII Rule 1A and Order XIII Rules 1 and 2 of the CPC, the defendants are seeking to add new facts and introduce new documents that were never filed by them earlier. It was only after a delay of more than two decades that the defendants moved an application under Order VIII Rules 1A and 3 read with Section 151 of the CPC, seeking to place on record the documents in question.
As per the provisions of Order VIII of the CPC the documents can only be allowed to be filed by the defendant at a belated stage if it can be shown that despite due diligence, the said documents were not within the knowledge of the defendant or could not have been produced earlier. In the present case, the Trial Court was correct in its conclusion that the defendants failed to exercise due diligence. The aforesaid documents were always in the knowledge of the defendants and in their possession. Yet, the defendants failed to place the same on record in a timely manner.
Counsel for the plaintiffs has correctly pointed out that even in the written statement, there is a reference to a sale deed executed in favour of the defendant no.2. However, there is no mention of any sale deed executed in favour of the defendant no.3. The defendants have been grossly negligent in pursuing the aforesaid case.
This Court, in Tyagi and Co. Vs. Yash Pal and Sat Pal has observed that Order XIII Rule 2 of the CPC clearly vests the court with discretion to allow production of documents, which discretion is dependent on the particular facts and circumstances of each case.
HC Held:
After evaluating various case laws and submissions by both the parties the Court held that “In the instant case, it is clear that the defendants had knowledge about the aforesaid documents and the said documents were in their possession from the very beginning. Therefore, there is no justification for filing the same several years from the date of filing of the written statement or even from the date of settlement of issues. The defendants have only made vague and unsubstantiated averments with regard to the documents either being misplaced from the judicial file, or not being filed by the previous counsel, which have rightly been rejected by the Trial Court.”
Bench: Hon'ble Mr. Justice Amit Bansal
Case Title: Manohar Lal And Ors v. Tara Chand (Since Deceased) Thr His Lrs And Ors
Case Details: CM(M) 951/2021 & CM No.42520/2021
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