Delhi High Court - Orders
Mrs Kulan Rukhsana Amin & Ors vs Gaurang Kanth & Anr on 3 February, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 81/2016
MRS KULAN RUKHSANA AMIN & ORS ..... Plaintiffs
Through: Ms. Sumita Hazarika, Advocate.
versus
GAURANG KANTH & ANR ..... Defendants
Through: Mr. Madan Lal Sharma, Advocate for
D-1.
Mr. Dhruva Bhagat, Advocate for D-3
to 5.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 03.02.2022
[VIA VIDEO CONFERENCING]
I.A. 1847/2022 (u/ Sec. 151 of Code of Civil Procedure, 1908 [hereinafter "CPC"] on behalf of the Appellant/ Plaintiffs seeking exemption from filing certified copy of the impugned Order dated 09th December, 2021 passed by the Ld. Joint Registrar)
1. Exemption is granted, subject to just exceptions.
2. The Appellants/ Plaintiffs shall file better copies of exempted documents, compliant with practice rules, before the next date of hearing.
3. Accordingly, the application stands disposed of.
I.A. 1878/2022 (u/ Sec. 14 of the Limitation Act, 1963 [hereinafter "Limitation Act"] r/w Sec. 151 of CPC seeking condonation of delay in filing the chamber appeal viz. O.A. 5/2022)
4. For the grounds and reasons stated therein, the application is allowed and the delay of 38 days in filing the chamber appeal is condoned.
5. Accordingly, the application stands disposed of.
Signature Not Verified Digitally Signed CS(OS) 81/2016 Page 1 of 9 By:NITIN KAIN Signing Date:14.02.2022 20:53:00O.A. 5/2022 (chamber appeal u/ Rule 5 Chapter II of the Delhi High Court (Original Side) Rules, 2018 against the Order dated 09th December, 2021 passed by the Ld. Joint Registrar disposing of I.A. 12345/2021)
6. The Appellants/ Plaintiffs impugn the Order dated 09th December, 2021 passed by the Ld. Joint Registrar disposing of an application being - I.A. 12345/2021 seeking, inter-alia, to summon and examine Defendant No. 1 as court witness or in alternative as Plaintiffs' witness and to direct him to produce original Will dated 15th December, 2006 and the original Sale Deed dated 04th November, 1999 and to permit Plaintiffs to cross-examine him on the said Will and Sale Deed.
7. In the impugned Order, the Ld. Joint Registrar has elaborately dealt with the facts of the case and contentions advanced by the parties and analysed the same in the light of the law on the subject and thereafter, rejected the application.
8. In view of the above, repetition of facts is not necessary, and for the sake of brevity they are not being repeated here and the Court proceeds to directly deal with the contentions urged by the Appellants, impugning the order.
CONTENTIONS OF APPELLANTS
9. Ms. Sumita Hazarika, counsel for the Appellants makes the following submissions: -
9.1. Defendant No. 1 viz. Mr. Gaurang Kanth's examination is necessary for unearthing the truth. Defendant No. 1 was representing Appellants' deceased father viz. late Mohd. Amin and is thus, privy to Signature Not Verified Digitally Signed CS(OS) 81/2016 Page 2 of 9 By:NITIN KAIN Signing Date:14.02.2022 20:53:00 several facts and communications which are necessary to be brought on record for effective adjudication of the suit.
9.2. Defendant No. 1 was also the sole propounder and the executor of the Will dated 15th December, 2006 left behind by Appellants' deceased father in respect of his estate. The said Will has been deliberately suppressed and is in the custody of Defendant No. 1 but has not been produced before this Court.
9.3. Appellants relied upon the Hibanama (gift deed) dated 08th February, 2014 by virtue of which Appellants' deceased father gifted the entire property bearing No. 268, Naseem Bagh, Jamia Nagar [hereinafter "property"] to his children viz. Appellants herein. Per Contra, existence of the said gift deed has been vehemently denied by Defendants No. 1 and 2. Defendant No. 1 vide reply dated 12th October, 2021 - for the first time - claimed that he is not required to execute the said Will since the same is adeemed under Sec. 152 of the Indian Succession Act, 1925 by the said Hiba (gift deed), however, in its written statement, Defendants contend that the Hiba is a forged document. Defendant No. 1 cannot be allowed to approbate and reprobate. A Hiba cannot be accepted only in part and thus, it is imperative Defendant No. 1 be summoned so that he may be examined on the same.
9.4. The contents of the Will dated 15th December, 2006 is in contravention with the purported Sale Deed dated 04th November, 1999 insofar as the said Will does not mention the sale of any part of the property having been sold to Defendants No. 1 and 2 nor does it grant any right of access to them. Therefore, it is essential for Signature Not Verified Digitally Signed CS(OS) 81/2016 Page 3 of 9 By:NITIN KAIN Signing Date:14.02.2022 20:53:00 Defendant No. 1 to be summoned and directed to produce the original Will and alleged Sale Deed.
9.5. The decision taken by Defendant No. 1 not to step into the witness-box, came to the knowledge of Appellants at the stage when the counsel representing the said Defendant made a statement before the Court to that effect as noted in the Order dated 05th March, 2020.
In these circumstances, in the interest of justice, the Court should exercise its inherent powers under Sec. 151 of CPC and summon Defendant No. 1 for recording his statement as a witness. 9.6. Reliance is placed on the judgment of the Supreme Court in K.K. Velusamy v. N. Palanisamy 1 to urge that this Court can and must exercise its inherent powers to secure the ends of justice and in order to prevent abuse of process of law notwithstanding that there are no specific provision(s) under CPC that would entitle the Appellants to seek such an order.
ANALYSIS
10. The Court has considered the aforenoted contentions advanced by the counsel of the Appellants and perused the impugned Order, relevant portions whereof read as follows: -
"20. Coming to the adjudication at hand, the very first contention of the plaintiffs is that defendant no.1 should be summoned as their witness. In this regard, it is well settled that the practice of summoning the opposite party as its witness by a party to a lis is highly deprecated. The ratio of pronouncements of the Privy Counsel in "Kishori Lal Vs. Chunni Lal", 31 All 166, and "Mahunt Shatrugan Das Vs. Bawa Sham Das", AIR 1938 PC 59, Atul Kumar Singh (supra) and Amitabh Sen (supra) can adverted to on this point. It has been further held in Atul Kumar Singh (supra) that the summoning or examination of an opposite party of a suit must be allowed by 1 MANU/SC/0267/2011.Signature Not Verified Digitally Signed CS(OS) 81/2016 Page 4 of 9 By:NITIN KAIN Signing Date:14.02.2022 20:53:00
the court only in the rarest of rare cases when it is unavoidable in the interest of justice.
21. Similarly, the summoning of a party to the suit as a Court witness cannot be done without cogent and special reasons for the same being shown on record.
22. It can now be seen if the facts of the present case allow for summoning of defendant no.1 as a witness for the plaintiffs or as a court witness and if the plaintiffs have been able to make out a "rarest of rare case" for exercise of extraordinary jurisdiction as prayed by them in the captioned IA.
xx .. xx .. xx
25. Thus the facts on which the Sale Deed dated 04.11.1999 is challenged are mentioned in the plaint itself and are based on the contents of the sale deed itself. Thus, the cross-examination of defendant no.1 either as a court witness or as a witness of the plaintiffs would neither be required nor imperative in the facts of the case.
xx .. xx .. xx
30. It is also undisputed that the plaintiffs first came to know of the Will dated 15.12.2006 in the year 2015 during the course of proceedings in partition Suit No.CS(OS) No.708 of 2015, as asserted in para no.8&9 of reply to preliminary objection in the replication filed by the plaintiffs.
31. Thus, the records of the said Will and the various pleadings were within the knowledge of PW1 even in the year 2015 & 2016 respectively. Thus no new material is sought to be produced through defendant no.1.
32. Furthermore, the Will dated 15.12.2006 is a registered document and the records of litigations mentioned in the list of reliance of the plaintiffs are judicial records. It thus cannot be said that the same are within the exclusive special knowledge of defendant no.1.
33. Furthermore, plaintiffs' assertions qua the contents of the Will dated 15.12.2006 and the contents of the various proceedings before the Hon'ble High Court are that the same did not contain any reference to the sale of the property under challenge in the present suit and it is further sought to be asserted that as per the said Will and litigations the deceased father of the plaintiffs was shown as owner of the suit property also. Needless to say the said assertions are a matter of appreciation and adjudication at the appropriate stage, however, in view of said assertions which are in the nature of inferences to be drawn from the said Will and litigations, there would not be any requirement for cross-examination of defendant no.1 in this regard. Thus, the argument that cross-examination of defendant no. 1 would be required qua the Will and litigations, to my mind, would not afford a reason sufficient enough to make out a rarest or rare case to summon defendant no. 1 as a witness of the plaintiffs or the Court, especially in exercise of extra ordinary jurisdiction.
xx .. xx .. xx
37. Thus, the onus to prove that the Sale Deed dated 04.11.1999 did not bear the signature of their father or was not got registered by their father is on the plaintiffs. Furthermore, the onus to prove that the sale deed does not identify the property conveyed through it and the effect of the same is also on the plaintiffs. The onus to prove the third issue relating to the limitation is on both the parties.Signature Not Verified Digitally Signed CS(OS) 81/2016 Page 5 of 9 By:NITIN KAIN Signing Date:14.02.2022 20:53:00
38. Thus, having regard to issues framed in the captioned suit, examination of defendant no.1 by the plaintiffs is neither necessary nor imperative. It is also observed that defendant no.1 is not under any obligation to prove the case of the plaintiffs and the initial onus to prove their case is on the plaintiffs themselves.
xx .. xx .. xx
42. In the written submissions, it is stated that the plaintiffs while could not have objected to defendant no.1 not entering the witness box on behalf of the defendants, they did not give up their right to summon defendant no.1 as a court witness or as a plaintiffs' witness. However, the plaintiff did not reserve their rights on 05.03.2020 to either summon defendant no.1 as their own witness or as a witness of the court and no such submission was made by the plaintiffs on 05.03.2020. Furthermore, perusal of records shows that the plaintiffs closed their evidence in absolute terms on 13.11.2019. Even at the time of closing their evidence, the plaintiffs did not reserve their rights to summon defendant no.1 as their own witness or as a court witness.
43. To my mind, no cogent reason allowing the plaintiffs to lead additional evidence or for summoning defendant no.1 as a witness of the plaintiffs or of the Court has been shown on record. The ratio in K. K. Velusamy (supra) though undisputed is of no help to the plaintiffs in the facts of the present case. The ratio in Vashram Daya Harijan (supra) is also of no help to the plaintiffs as it was passed in its own peculiar facts and the Hon'ble Court after noticing that the practice of summoning the opposite party as a witness has been deprecated by Indian Courts observed that in the facts of that case where there were admissions in previous litigation and for cogent reasons, the opposite party could be summoned.
44. In the facts of the case, the plaintiffs have not been able to show any cogent reason for summoning of defendant no.1 as their witness or as a witness of the court much less any reason to show that the case of the plaintiffs falls in the category of rarest of rare cases.
45. As regards the direction for production of Will dated 15.12.2006 and Sale Deed dated 04.11.1999, no reason for seeking production thereof other than for the purpose of cross-examination of defendant no. 1 has been shown on record. As already observed defendant no. 1 cannot be allowed to be summoned as a witness either of the plaintiffs or as a court witness in the facts of the present case. Furthermore, the Sale Deed dated 4.11.1999 and Will dated 15.12.2006 are registered documents and have been relied upon by the plaintiffs as Ex P1 and Ex PW 1/7 respectively. Thus, no direction for production of the same is warranted at this stage especially when the evidence of the plaintiff has already concluded."
[Emphasis supplied]
11. The issues framed in the present suit are as follows: -
"(i) Whether the Sale Deed dated 4th November, 1999 registered on 5th November, 1999 purported to be executed by the father of the plaintiffs does not bear the signatures of the father of the plaintiffs and was not got registered by the father of the plaintiffs? OPP Signature Not Verified Digitally Signed CS(OS) 81/2016 Page 6 of 9 By:NITIN KAIN Signing Date:14.02.2022 20:53:00
(ii) Whether the aforesaid Sale Deed does not demarcate/identify the property conveyed there under and if so the effect thereof? OPP
(iii) Whether the cause of action for the suit first accrued to the plaintiffs in March, 2015? OPPr
(iv) Relief"
12. The aforenoted issues fix the onus of proof on the Plaintiffs/ Appellants. The Appellants had the opportunity to prove its case and indeed lead oral evidence. The evidence stood closed on 13th November, 2019 and thereafter, the matter was directed to be listed for evidence of the Defendants. At that juncture, the Defendants took a decision to examine only Defendant No. 2 and not Defendant No. 1. To this effect, the counsel for the Defendants made a statement, as noted in the Order dated 05th March, 2020, relevant portion whereof reads as follows: -
"3. The counsel for the plaintiffs agrees that the defendant no.2, even without his name being there in the list of witnesses, can examine himself. On enquiry as to what is the prejudice suffered by the plaintiff by cross-examining the defendant no.2, the counsel for the plaintiffs states that the plaintiffs apprehend that after the defendant no.2 has been cross-examined, the defendant no.1 may file his affidavit by way of examination-in-chief, covering the points on which the defendant no.2 has been cross-examined. It is thus stated that the affidavit by way of examination-in-chief of the defendant no.1 should also be brought on record before the cross-examination of defendant no.2 is commenced.
4. The counsel for the defendants states that the defendant no.1 is not to be examined.
5. The counsel for the plaintiffs is satisfied therewith.
6. The recording of evidence on commission to continue."
[Emphasis supplied]
13. Despite being satisfied with the stand of Defendant No. 1, as noted above, Appellants now seek to summon Defendant No. 1. The prayer made by the Appellants is completely misconceived. The onus of proving the issues was placed on the Appellants and they had sufficient opportunity to prove their case. The matter has now advanced to Defendants' evidence and Signature Not Verified Digitally Signed CS(OS) 81/2016 Page 7 of 9 By:NITIN KAIN Signing Date:14.02.2022 20:53:00 at this stage, the opposing party seeks to summon Defendant No. 1 as Plaintiffs' witness/ court witness.
14. In light of the foregoing, certain judicial precedents can be noted. The Bombay High Court in Pirgonda Hongonda v. Vishwanath Ganesh and Ors.2 held that "Normally a party to the suit is expected to step into the witness box in support of his own case and if a party does not appear in the witness-box it would be open to the trial Court to draw an inference against him. If a party fails to appear in the witness box, it should normally not be open to his opponent to compel his presence by the issue of a witness summons.". Further, the Karnataka High Court in Krithi Constructions v. K. Thippa Reddy3 held that summoning/ or examining of an opposite party to a suit as a witness must be allowed by the Court only in 'rarest of rare cases' where, in the interest of justice, it is essential and inescapable. This Court in Symantec Software Solutions Pvt. Ltd. v. R. Modi and Ors. 4 while referring to Amitabha Sen v. Sports World International Ltd. 5 held that a party is not entitled to seek summoning of or examination of a witness without satisfying the court regarding the relevance of the witness's testimony to the lis for adjudication, i.e., the object for which such witness is proposed to be summoned/ examined.
15. The grounds urged by Ms. Hazarika are not compelling enough for this Court to exercise its inherent powers vested under Sec. 151 of CPC. In 2 MANU/MH/0163/1965.
3MANU/KA/0983/2014.
4MANU/DE/2790/2016.
5MANU/DE/0316/2008.
Signature Not Verified Digitally Signed CS(OS) 81/2016 Page 8 of 9 By:NITIN KAIN Signing Date:14.02.2022 20:53:00fact, Supreme Court in KK Velusamy (supra) while taking note of the scope of Sec. 151 of CPC specifically observed that the powers under Sec. 151 have to be used only in certain exceptional circumstances, when it is absolutely necessary to secure the ends of justice, in case no other provision(s) exist in law that govern the matter. The inherent powers of the Court have to be exercised cautiously and with a degree of circumspection.
16. The ground urged by Ms. Hazarika that since Defendant No. 1 represented the Appellants' deceased father as a counsel, is erroneous. Any communication shared by the Appellants' deceased father with Defendant No. 1 in the capacity of a counsel will be privileged and Defendant No. 1 cannot be compelled to step into the witness-box for that purpose.
17. Further, the Will as well as the purported Sale Deed in question are documents that have to be proved in accordance with law. The same are on record as recorded by the Ld. Joint Registrar. Merely because Defendant No. 1 is named executor in the Will cannot be a ground to summon him as witness.
18. In view of the above, the Court finds no infirmity in the well-analysed order passed by the Ld. Joint Registrar dated 09th December, 2021.
19. Accordingly, the aforesaid application is completely devoid of merit and is dismissed in the above terms.
SANJEEV NARULA, J FEBRUARY 3, 2022/d.negi Signature Not Verified Digitally Signed CS(OS) 81/2016 Page 9 of 9 By:NITIN KAIN Signing Date:14.02.2022 20:53:00