Delhi District Court
Sh. Murari Lal Malhotra vs Jugal Kishore on 10 September, 2014
In The Court of Pawan Kumar Matto
Additional District Judge01(East)
Karkardooma Courts, Delhi.
RCA No.16/2013
Unique Case ID No.: 02402C0 14834 2013
In the matter of :
Sh. Murari Lal Malhotra
S/o Late Sh. Hem Raj
R/o E17, Ground Floor,
Kalkaji, New Delhi .....Appellant/Defendant
Versus
Jugal Kishore
S/o Sh. Hem Raj
At present R/o C396, LIG DDA Flats,
Near Sunil Dairy, Loni Road,
Shahdara, Delhi32 .....Respondent/Plaintiff
Date of institution : 13.05.2013
Arguments heard on : 04.09.2014
Date of Order : 10.09.2014
O R D E R
10.09.2014
1. This is an appeal against the impugned judgment and decree dated 26.02.2013 passed by ld. Trial court of Ms. Kiran Bansal, then Ld. Senior Civil Judge cum RC (East), KKD Courts, Delhi, vide which, the ld. Trial court has decreed the suit of the RCA No.16/2013 Page No.1 of 26 10.09.2014 plaintiff.
2. Briefly stating, the facts of the case, relevant for the disposal of the present appeal are that the plaintiff has filed the suit in the ld. Trial court for the recovery of damages and mesne profits, on the averments that plaintiff and defendant are real brothers and a plot measuring 200 sq. yards bearing no.4/2377, Gali No.9/10, Bihari Colony, Delhi was purchased in the year 197071, in which equal half amount of the price was paid by the plaintiff, but, the documents of ownership were in the power and possession of the defendant. It is also stated that defendant had hatched a conspiracy in collusion with Sh. Ram Gopal i.e. one brother of the plaintiff, in the month of November, 1999 to dispossess the plaintiff and also to sell the property at a good price and also stated that when the plaintiff had gone to attend the marriage of his nephew namely Sh. Sanjay Mishra at Fatehpuri, Chandni Chowk, then the defendant had demolished two pakka rooms of the plaintiff, sometime between 19.11.1999 to 21.11.1999 and a police report was also lodged regarding the same, but, police had not taken any action thereon and also stated that thereafter, a criminal complaint U/s 427/451/380/506/120B IPC was also filed against the defendant and Sh. Ram Gopal. It is also stated that thereafter, the defendant had filed a case against the plaintiff in the year 2001 RCA No.16/2013 Page No.2 of 26 10.09.2014 at Jhanjharpur, Distt. Madhubani, Bihar, on the false allegations, which was a counter blast and also stated that plaintiff was arrested from his house on dated 07.07.2006 and he remained behind bars for 97 days and he was acquitted vide order dated 23.10.2006. It is also stated that in view of the same, the plaintiff has suffered mental agony and also stated that plaintiff has come to understand that the defendant has sold away half of the portion of the suit property in an illegal manner and he had left the suit property forever. It is also stated that defendant had filed the case with the malafide intention, for which, the plaintiff remained behind bars for 97 days and defendant had grabbed the property of the plaintiff and in view of the said false prosecution, the reputation of the plaintiff has been lowered in the eyes of his friends and relatives and also stated that plaintiff had to borrow the money from others to defend himself, accordingly, the plaintiff claimed damages to the tune of Rs.
1,50,000/, details of which are as under:
Fee paid to counsel for defense Rs.15000/
Fee paid to different consultants
and lawyers for bail and other purposes Rs.20000/
Travelling and stay expenses Rs.20000/
For treatment of heart ailments Rs.15000/
Damages caused due to demolition of
rooms of plaintiff Rs.80000/
Total Rs.150000/
RCA No.16/2013 Page No.3 of 26
10.09.2014
3. It is further averred that plaintiff has also claimed Rs. One lac, being damages for mental agony and bodily pain and loss of reputation and further stated that had the plaintiff let out his portion for his livelihood and survival, he could fetch Rs.5000/ per month as rent, so, he has claimed Rs.5000/ per month as mesne profits, in view of illegal acts of the defendant. It is further stated that since the plaintiff was having a threat of forcible dispossession from the defendant, so, he had earlier instituted a suit for permanent injunction on dated 04.05.2007 against the defendant and the same suit was decreed as compromised, on the statement of the defendant, on dated 14.09.2007 and the plaintiff has prayed for passing a decree of Rs.2,50,000/, being damages alongwith pendente lite interest and also for mesne profits @ Rs.5000/ per month.
4. Summons of the suit were issued to the defendant and on completion of the service of the summons, the defendant had put his appearance through his counsel and filed the Written statement and contested the case on the grounds inter alia that the ld. trial court does not have territorial jurisdiction to adjudicate upon the matter, as the complaint was filed at Jhanjharpur, Distt. Madhubani, Bihar and the prosecution was launched at Bihar and plaintiff remained in Jail at Bihar, so, plaintiff has no cause of action to file the suit in Delhi and also RCA No.16/2013 Page No.4 of 26 10.09.2014 stated that suit is bad for nonjoinder of necessary parties of Jhanjharpur, Distt. Administration, as well as, of Govt. of Bihar. It is also averred that in the said complaint, filed by the defendant, a compromise was arrived at between the plaintiff and defendant through Sh. Naval Kishore, who made negotiations with the defendant, on behalf of the plaintiff, as plaintiff could not be released from Jail even after passing of more than 90 days and after said compromise, Mr. Jugal Kishore / mediator had written a letter to the plaintiff, while plaintiff was in jail, that defendant will not appear at the time of arguments on charge, accordingly, the plaintiff was acquitted from charge on 23.10.2006. It is also averred that defendant had compromised the matter with the plaintiff and had the matter not been compromised, the case would certainly have gone into conviction. It is also averred that plaintiff has no status in the society and in view of his bad character, his marriage is not solemnized and also stated that when the plaintiff was in Govt. Service, he was caught red handed while playing gamble in the office hours and in view of the same, he was suspended. It is also stated that plaintiff is living with one Anupama Gupta in the house of the defendant at Bihari Colony, from where, he was thrown away by the neighbourers, as plaintiff had illicit relations with Anupama Gupta. It is also stated that defendant RCA No.16/2013 Page No.5 of 26 10.09.2014 had purchased the suit property from his own funds and the defendant has admitted that documents of suit property are in his power and possession, as, he is the absolute owner of the said property. It is denied that defendant in collusion with Sh. Ram Gopal had hatched any conspiracy to dispossess to the plaintiff. It is also stated that defendant had allowed to the plaintiff to live in the room, which was attached with bathroom and kitchen, as the same was lying vacant and defendant used to reside in Mahinder Park, Rani Bagh and plaintiff was allowed to stay in the property, being licensee, as the plaintiff had given the assurance that as soon as he will get an alternate accommodation, he will vacate the same, but, despite of repeated requests and various legal notices issued by the defendant, the plaintiff had failed to vacate the same room and the defendant had filed the suit for possession against the plaintiff, which is still pending. It is denied that pakka rooms were demolished by the defendant. It is also stated that only broken tin shed, which was in dangerous condition, was removed away in the presence of the plaintiff. It is admitted by the defendant that a criminal complaint U/s 506/34 IPC was filed by the plaintiff, wherein he was summoned by the court of ld. MM. It is also stated that while defendant was on business tour in Jhanjharpur, plaintiff had snatched an amount of Rs. RCA No.16/2013 Page No.6 of 26
10.09.2014 50000/ from him and fled away from the spot, so, a criminal complaint was lodged at Bihar and on the basis of the said complaint, the plaintiff was arrested. It is also stated that since the said offence was henious, so, the plaintiff remained in Jail for more than 90 days and due to intervention of Naval Kishore i.e. brother of the plaintiff, the plaintiff was was released from the jail, being acquitted, as defendant abstained himself from appearing and prosecuting his complaint, as the assurance was made by Sh. Naval Kishore. It is also admitted by the defendant that he had already sold a portion of the property, but in the year 2006 and not in the year 2003. It is also stated that plaintiff has no interest or ownership in the said property and defendant is the absolute owner of the said property and after denying other averments made in the plaint, the defendant has prayed for dismissal of the suit.
5. The plaintiff has filed the replication and denied the averments made in the written statement and reiterated the contents of his plaint.
6. From the pleadings of the parties, the ld. trial court was pleased to frame the following issues in the suit:
(i) whether the present court has no territorial jurisdiction to entertain the suit ? OPD.
(ii) Whether the plaintiff is the joint owner of the property RCA No.16/2013 Page No.7 of 26 10.09.2014 bearing No.4/2377, Gali No.9/10, Bihari Colony, Delhi ? OPP.
(iii) Whether the defendant is absolute owner of the above said property ? OPD
(iv) Whether the defendant wrongfully demolished two rooms in the above said property ? If so, whether the plaintiff is entitled to damages for the same ? OPP
(v) Whether the defendant is guilty of malicious prosecution against the plaintiff ? If so, whether the plaintiff is entitled to damages for the same ? OPP
(vi)Whether the plaintiff is entitled to mesne profits from the defendant ?
(vii) Relief.
7. In order to prove his case, the plaintiff has examined himself as PW1, vide his affidavit Ex.PW1/X. In one way or other he has reiterated the contents of his plaint in his affidavit. He has relied upon the documents i.e. certified copy of the judgment dated 23.10.2006, vide which, the plaintiff was acquitted Ex.PW1/1, certified copies of order sheet dated 14.09.2007, statements of plaintiff and defendant recorded in the court of Ms. Shuchi Shahmiri, then Civil Judge, KKD Courts, Delhi on 14.09.2007 are collectively Ex.PW1/2, certified copies of MTNL Bill, 6 receipts issued by Rama Builders, medical card, ration card, identity card of defendant, complaint dated 09.01.07 addressed to SHO, PS Farsh Bazar by the defendant and site plan are collectively Ex.PW1/3 and photocopy of complaint dated 07.10.1997 addressed to Hon'ble Home Minister mark A. He was subjected to cross examine by the ld. Counsel for the RCA No.16/2013 Page No.8 of 26 10.09.2014 defendant. The plaintiff has not examined any other witness. Whereas, the defendant has examined himself as DW1 vide his affidavit Ex.DW1/A. In one way or other he has reiterated the contents of his Written statement in his affidavit. He has relied upon the document i.e. information received under RTI Act dated 28.07.2008 Ex.D1/2 and photocopy of letter dated 12.09.2006 mark A. He was subjected to cross examine by the ld. Counsel for the plaintiff. The defendant has not examined any other witness.
8. The ld. trial court vide its impugned judgment and decree dated 26.02.2013 decreed the suit of the plaintiff.
9. Feeling aggrieved with the findings of the ld. Trial court, the appellant / defendant has filed the present appeal against the impugned judgment and decree dated 26.02.2013, as well as, an application u/o 41 rule 27 CPC, stating therein that in the year 2006, the sale deed dated 12.05.1971 was misplaced, while the appellant was shifting his residence from Rani Bagh to Kalkaji, New Delhi and the same was traced out in the old papers in the second week of April, 2013, when the appellant was searching for some other documents of criminal case and the appellant had also found the certified copy of civil case filed for injunction, and the same documents are very material, as the respondent has taken the false plea that he is joint owner of the above said RCA No.16/2013 Page No.9 of 26 10.09.2014 property and the factum of ownership of appellant has been admitted by the respondent in criminal complaint No.162/03, which was decided by the court of Sh. R L Meena, Ld. MM, Delhi and in case the appellant is not allowed to lead the additional evidence, then he will suffer an irreparable loss and injury, which cannot be compensated in any manner and prayed for allowing him to lead the additional evidence by way of allowing the application under consideration.
10. The notices of the appeal, as well as, application u/o 41 rule 27 CPC, were issued to the respondent, who has put his appearance through his counsel.
11. The respondent has filed reply to the application u/o 41 rule 27 CPC and contested the same. It is denied that the alleged sale deed was misplaced. It is also stated that appellant has admitted before the ld. Trial court that alleged documents were in his power and possession, but, he did not file the same, despite of framing of issue no.3. It is also stated that appellant cannot take undue advantage of his own wrongs and appellant is a negligent person, who woke up after passing of decree in favour of respondent and the applicant wants to fill up the lacuna and appellant is opting dilatory tactics to harass the old ailing respondent of aged about 82 years and appellant deliberately omitted to produce the documents before the trial court and RCA No.16/2013 Page No.10 of 26 10.09.2014 prayed for dismissal of the application under consideration with heavy cost.
12. The record of the trial court is also requestioned and perused.
13. I have heard the ld. counsels for the parties and perused the record.
14. The ld. counsel for the appellant has submitted that appellant could not produce the sale deed dated 12.05.1971 of the suit property in the ld. Trial court, as the sale deed was misplaced and it was not traceable to him during the trial and he has found the same in the month of April, 2013 and filed the present application and also submitted that in view of non filing of the sale deed in the ld. Trial court by the plaintiff, the ld. Trial court has drawn an adverse inference and pleased to hold that plaintiff and defendant are joint owners of the suit property and also granted relief of mesne profits and also submitted that in view of non filing of this sale deed, the ld. Trial court has decided the issues no.2,3,4&6 against the appellant / defendant. He has also submitted that the sale deed of the suit property is an essential document, which could not be filed by the appellant / defendant during the trial and in view of non filing of the same, an adverse inference has been drawn and the ld. trial court has decided the issues no.2,3,4&6 against the appellant and also submitted that appellant may be allowed to file this document, as even in the RCA No.16/2013 Page No.11 of 26 10.09.2014 judgment passed by the court of Sh. R L Meena, Ld. MM, the ld. judge is pleased to hold that appellant is the owner of the suit property and also submitted that since the respondent has not been acquitted on merit and he is merely discharged, so, damages could not be granted to the respondent and prayed for allowing the application u/o 41 rule 27 CPC for leading additional evidence and also for allowing the appeal.
15. Whereas, the counsel for the respondent has submitted that respondent had filed the civil suit for recovery of damages and mesne profits and also submitted that appellant was having number of opportunities to file the sale deed in the ld. Trial court and despite of having opportunities to file the same sale deed in the ld. Trial court, he failed to file the same, so, at this stage, the appellant can not be allowed to file the sale deed. He has also submitted that in the sale deed, property number is not the same, as mentioned in the plaint. He has also submitted that even in the judgment passed by Sh. R L Meena, Ld. MM, the number of the suit property is not mentioned and also submitted that respondent is an old aged person and it is proved fact on the record that respondent remained behind the bars for 97 days in Bihar, in view of false case, filed by the appellant, thus, the respondent has suffered a great loss, as his liberty was curtailed away for a considerable period for no fault of him and he is ultimately RCA No.16/2013 Page No.12 of 26 10.09.2014 acquitted and also submitted that since the respondent has already been acquitted in the said criminal case, so, the respondent is entitled to recover damages on account of such malicious prosecution and also submitted that since the appellant has failed to produce the sale deed, so, in the absence thereof, the ld. Trial court is pleased to hold that appellant and respondent are joint owners of the property No.4/2377, Gali No.9/10, Bihari Colony, Delhi and prayed for the dismissal of the application u/o 41 rule 27 CPC, as well as, of appeal. He has relied upon the judgment passed by their lordship of Supreme Court of India in case Wadi v/s Ami Lal & others JT 2002(6) SC 16 and submitted that there is no illegality or perversity in the impugned judgment and decree under appeal, so, the application u/o 41 rule 27 CPC, as well as, appeal are liable to be dismissed.
16. In rebuttal, the ld. counsel for the appellant has submitted that appellant has also placed on record document i.e. form क&ख, which clearly manifests that old number of the property was T17, Bihari colony, Bhola Nath Nagar, Shahdara, Delhi32, is mentioned therein and new number of the same property is 4/2377, Gali No.9/10, Bihari Colony, Delhi and also submitted that in the sale deed property No.T17 is also mentioned, so, the property is well identifiable and also submitted that this is a very important document and the ld. Trial court has decided the issues RCA No.16/2013 Page No.13 of 26 10.09.2014 no.2,3,4&6 against the appellant in the absence of the sale deed and findings of ld. Trial court on all the issues are not sustainable in the eyes of law.
17. I have given thoughtful consideration to the submissions made by the ld. counsels for the parties and perused the record.
18. The perusal of the record shows that the plaintiff has filed the suit for recovery of damages and mesne profits against the defendant, in the ld. Trial court and plaintiff / respondent had claimed that he is joint owner of property No.4/2377, Gali No. 9/10, Bihari Colony, Delhi and documents of the suit property were stated to be in power and possession of the appellant / defendant and this fact is well admitted by the defendant in para no.2 of the Written statement that the documents of ownership are in his power and possession and case was filed on dated 06.10.2007, whereas, Written statement was filed by he defendant on dated 26.05.2008 and issues were framed on dated 03.09.2008 and suit was decided by the ld. Trial court vide its impugned judgment and decree dated 26.02.2013. But, during the trial, the appellant / defendant has failed to file the sale deed and in view of non filing of the sale deed, the ld. Trial court has drawn an adverse inference against the appellant / defendant and pleased to hold that plaintiff and defendant are joint owners of the property bearing No.4/2377, Gali No.9/10, Bihari Colony, RCA No.16/2013 Page No.14 of 26 10.09.2014 Delhi. No doubt in the case in hand, the burden of proving issue no.2 was kept on the plaintiff, by the ld. Trial court and the plaintiff has failed to bring on record any documentary proof showing that he is joint owner of the property bearing No. 4/2377, Gali No.9/10, Bihari Colony, Delhi, whereas, the burden of proving issue no.3 was on the defendant, as the defendant has claimed to be the absolute owner of the above said property and appellant / defendant was having sufficient time to discharge his burden of proving this issue. But, during the trial, the appellant / defendant has failed to bring on record the sale deed, so, keeping in mind the pleading of the defendant that he had admitted that the ownership papers of the suit property is in his possession. The issue no.3 was framed. But, the defendant has failed to produce the same during the trial, so, in view of withholding of documents of ownership of the above said property by the defendant during the trial, the ld. Trial court is pleased to draw an adverse inference against the defendant and pleased to hold that the defendant has not been able to prove that he is the absolute owner of the said property. Since the plaintiff has claimed to be joint owner of the said property situated at Bihari Colony and in view of non production of documents of ownership by the appellant / defendant during the trial and in view of withholding of such title documents of the above said RCA No.16/2013 Page No.15 of 26 10.09.2014 property by the appellant / defendant in the trial, the ld. trial court decided the issue no.3 against the defendant, the ld. Trial court had come to the conclusion that the plaintiff is the joint owner of the property bearing No.4/2377, Gali No.9/10, Bhola Nath Nagar, Shahdara, Delhi32 and decided issue no.2 in favour of the plaintiff and in consequence thereof, the ld. Trial court had given the findings on issues no.4&6 in favour of the plaintiff.
19. It is also pertinent to mention here that the burden of proving issue no.5 was on the plaintiff and plaintiff has examined himself as PW1 vide his affidavit Ex.PW1/A and he was also cross examined by the ld. Counsel for the defendant, but, from the testimony of the plaintiff, it is proved on the record that appellant / defendant had filed a criminal complaint against his brother i.e. plaintiff and it was alleged by the defendant that the plaintiff had snatched away Rs.50,000/ from the defendant at Bihar and the plaintiff was arrested and released from the judicial custody after being acquitted by the court concerned, as the defendant has failed to appear before the said court. The ld. Counsel for the appellant has submitted that in view of the compromise between the plaintiff and defendant, the defendant chose to not appear before the said court and plaintiff was merely discharged and not acquitted on merit and RCA No.16/2013 Page No.16 of 26 10.09.2014 the counsel for the appellant has submitted that in view of discharge of the plaintiff from the said court, the plaintiff cannot claim any damages for any malicious prosecution, as he is not acquitted on merit, but this court does not find any force in such submissions of the ld. Counsel for the appellant, as from the perusal of the judgment dated 23.10.2006 Ex.PW1/1 passed by the Judicial Magistrate Ist Class, Jhanjharpur, it is clear that the plaintiff was acquitted from the charges. It is not matter of dispute that the appellant / defendant had lodged a criminal complaint against the plaintiff and the respondent / plaintiff remained behind bars for 97 days and the appellant herein did not pursue the said criminal complaint after the plaintiff was put behind bars and in view of such conduct of the appellant / defendant, the ld. Trial court has rightly come to the conclusion that the prosecution done by the defendant was malicious. It is pertinent to mention here that the defendant has alleged in the said complaint that in the business tour, the plaintiff had snatched Rs.50000/ from the defendant. But, during the cross examination, the defendant has admitted that he has closed the business in the year 2000 itself. So, how could he visit the Bihar for business purpose in the year 2001 and nothing has been proved on the record that the plaintiff had accompanied the defendant to Bihar in the year 2001 and no suggestion to this RCA No.16/2013 Page No.17 of 26 10.09.2014 extent has been given to the plaintiff, during his cross examination that in the year 2001, he had accompanied the defendant to Bihar or that he had snatched away Rs.50000/ from him and in view of the same, the ld. Trial court has come to the conclusion that the plaintiff has not accompanied to the defendant in Bihar in the year 2001 and he has not snatched any amount from the defendant and the criminal complaint filed by the defendant in the court at Bihar was false and the plaintiff has suffered a lot due to the filing of such false and malicious complaint by the defendant. For the same reason, the ld. Trial court has also come to the conclusion that in view of the same, the plaintiff must be compensated for the wrongful act of the defendant. Since this is not disputed by the counsel for the appellant in the present appeal that the plaintiff remained in jail for 97 days in view of filing of the false complaint by the defendant and the plaintiff has claimed damages to the tune of Rs. One lac. Since the liberty of the plaintiff was curtailed away for a considerable period of 97 days in view of the filing of the false complaint by the defendant, so, the plaintiff must have suffered mental agony and pain in view of such detention behind bars for such a considerable period. The plaintiff has also claimed Rs.15000/ for treatment of his heart ailment. No doubt that the plaintiff has failed to bring on record any medical RCA No.16/2013 Page No.18 of 26 10.09.2014 prescription to show that he was getting any treatment of such heart ailments or that the same were caused in view of act of the defendant, so, in view of non production of the same, the ld. Trial court has declined the said relief. The plaintiff has claimed Rs.15000/ as fee to the counsel for the defence and Rs. 20000/ fee paid to the different consultants and lawyers for bail and other purposes and he has also claimed Rs.20000/ as travelling and stay expenses. No doubt that the plaintiff has not placed on record any specific proof regarding spending of these amounts. But, on the basis of preponderance of probability, it is probable that such amount must have been borne by the plaintiff on the litigation initiated against him by the defendant and the amount claimed by the plaintiff is reasonable and the plaintiff has also stated during his cross examination that he had paid Rs. 15000/ to his counsel and this payment was made by his relative, who visited him in the jail and one of the jail inmate namely Sh. Ram Avtar had also helped him and Sh. Naval Kishore had also helped him financially in pursuing the case and further stated that he told his relative and other persons to make him free and he would pay them on his release from the jail and he was still making payment to Sh. Naval Kishore and Sh. Jagdish Lal, as they were telling him about the sum, remaining to be paid to them and in the given circumstances, the ld. Trial RCA No.16/2013 Page No.19 of 26 10.09.2014 court has come to the conclusion that the plaintiff cannot be expected to file any proof regarding such payment to the lawyers and relatives nor he could maintain any such account, so, taking into consideration all these aspects of the case, the ld. Trial court has come to the conclusion that plaintiff is entitled to an amount of Rs.35000/ as fee paid to the consultants and lawyers to defend himself and Rs.20000/ on account of travelling and staying expenses and pleased to hold that plaintiff is entitled to recover an amount of Rs. one lac on account of damages and an amount of Rs.55000/ fee paid to the different consultants and lawyers, travelling and stay expenses and decided the issue no.5 in favour of the plaintiff and against the defendant and this court does not find any infirmity and perversity in the findings of the ld. Trial court on this issue, so, the same stands upheld.
20. Since the defendant has claimed to be absolute owner of the suit property bearing No.4/2377, Gali No.9/10, Bihari Colony, Delhi, whereas, the plaintiff has claimed to be the joint owner of the same property and the ld. Trial court was pleased to frame the issues no.2&3 in this regard, in view of non filing of the documents of title by the defendant in his favour, the ld. Trial court had decided the issues no.3&6 against the defendant. No doubt, that the burden of proving the issue no.2 was on the plaintiff and RCA No.16/2013 Page No.20 of 26 10.09.2014 the plaintiff has failed to bring on record any cogent evidence showing that he is joint owner of the property bearing No.4/2377, Gali No.9/10, Bihari Colony, Delhi. But, in view of non production of the documents of title of suit property by the defendant, the ld. Trial court had drawn an adverse inference against the defendant and decided the issue no.2 in favour of the plaintiff. Whereas, the burden of proving the same was on the plaintiff and the plaintiff has not led any evidence to prove joint ownership, now the defendant has sought to bring on record the sale deed dated 12.05.1971 of suit property by way of leading additional evidence, at this stage. No doubt, that the findings of the ld. Trial court have already come against the defendant and this court is of the considered view that the appellant / defendant was having considerable time and opportunities to bring on record, this document, even during the trial in the trial court. But, the defendant remained negligent and he failed to bring on record this document, during the trial in the trial court. But, as the ld. Counsel for the appellant has submitted that this sale deed was misplaced and it was not traceable to him, during the trial, in the trial court and he has found the same only in the month April, 2013. But, the defendant has failed to explain as to from where, he has found the same. The ld. counsel for the respondent has relied upon the judgment passed by their Lordship of Supreme Court of India in case Wadi v/s Ami Lal & others JT 2002(6) SC 16. I have RCA No.16/2013 Page No.21 of 26 10.09.2014 gone through the said judgment.
21. Their Lordship of Supreme Court of India in case Wadi v/s Ami Lal & others JT 2002(6) SC 16 was pleased to hold that: ''It is clear that rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in subrule(1) is that the parties to an appeal are not entitled to produce additional evidence(oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in clauses(a),(a) and (b). We are concerned here with clause (b) which is an enabling provision. It says that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment, admission of such evidence is necessary, clause(b) enables it to adopt that course. Invocation of clause(b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of material on record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case''. RCA No.16/2013 Page No.22 of 26
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22. Thus, from the law laid down by their lordship of Supreme Court of India in the above said judgment, it is clear that interest of justice is paramount consideration for disposal of application U/o 41 rule 27 CPC and in the case in hand, the sale deed dated 12.05.1971 alleged to have been executed in favour of appellant, clearly manifests that it was executed in favour of the appellant exclusively. No doubt, that the ld. counsel for the respondent has disputed the sale deed and stated that same sale deed is not relating to the suit property bearing No.4/2377, Gali No.9/10, Bihari Colony, Delhi, as the appellant has filed the form क&ख of municipal corporation, wherein the old number of property is also mentioned as T17 and house No.2377, New Bihari Colony, Bhola Nath Nagar, Shahdara, Delhi32 is also mentioned therein and which prima facie shows that the old number of the property is T17, whereas, new number thereof is 2377, New Bihari Colony, Bhola Nath Nagar, Shahdara, Delhi32. Since on the sale deed, the new number i.e. 2377, New Bihari Colony, Bhola Nath Nagar, Shahdara, Delhi32 is not mentioned. So, in the considered opinion of this court, the appellant deserves the opportunity to prove this sale deed and relating documents thereto, to prove the sale deed and number of the suit property.
23. No doubt, that it was incumbent duty of the appellant / defendant to prove that sale deed was executed in his name and RCA No.16/2013 Page No.23 of 26 10.09.2014 he is absolute owner of the property bearing No.4/2377, Bihari Colony, Bhola Nath Nagar, Shahdara, Delhi32 and he was also under obligation to discharge his onus to prove issue no.3 to prove his absolute ownership of the suit property, to which, the appellant / defendant has miserably failed and findings of the ld. Trial court have come against the appellant and the appellant has sought to lead the additional evidence at this appellate stage. Since the ld. counsel for the appellant has submitted that sale deed was not traceable, during the trial in the trial court and it is found in the month of April, 2013, so, the appellant has sought permission to lead the additional evidence. But, the appellant has failed to disclose the place of receiving the same and since the application to this extent is vague, but, as this court has come to the conclusion that the appellant deserves opportunity to prove this document. But, at the same time, since this court is also of the considered opinion that the appellant was under
obligation to prove this document, during trial in the trial court. But, failed to prove the same in the trial court and after giving of the findings by the ld. Trial court against the appellant, the appellant has chosen to file the same at the appellate stage. Since this court is of the considered opinion that had this sale deed been proved on the record of the trial court, the findings of the ld. Trial court on issues no.2,3,4&6 could have been other RCA No.16/2013 Page No.24 of 26 10.09.2014 than as given by the ld. Trial court, on these issues in the impugned judgment and decree under appeal.
24. No doubt, that the appellant has sought to prove the sale deed at the appellate stage. But, in the considered opinion of this court, the respondent can be compensated in the monetary form for such delay caused by the appellant. Since this court has come to the conclusion that sale deed is an important document, so, keeping in mind facts, circumstances, law and in the interest of justice, the appellant is allowed to prove the sale deed dated 12.05.1971 alleged to have been executed in his favour, but, subject to the cost of Rs.25000/ to be given to the respondent.
25. So far as the judgment of Sh. R L Meena, Ld. MM, KKD Courts, Delhi is concerned, since the property number is not mentioned therein, so, it will be futile to allow the appellant to lead the additional evidence to prove the same. Accordingly, the application u/o 41 rule 27 CPC qua the same is hereby dismissed. In the above said terms, the application filed by the appellant u/o 41 rule 27 CPC, stands disposed of.
26. In view of allowing of the application u/o 41 rule 27 CPC, the findings of the ld. Trial court on issues no.2,3,4&6 are set aside. The case is remanded to the ld. Trial court with the direction to allow the appellant to lead the additional evidence RCA No.16/2013 Page No.25 of 26 10.09.2014 in the ld. trial court, to discharge his onus to prove issue no.3 and to give the opportunity to the respondent to lead the evidence on issues no.2,4&6 and the ld. trial court is directed to decide issue no.2,3,4&6 afresh on the basis of the entire evidence on the record.
27. Since both the parties of the present lis are senior citizens, so, the ld. Trial court is directed to dispose of the suit within a period of eight months from the date of receiving of copy of this order.
28. Whereas, this court does not find any infirmity, illegality or perversity in the findings of the ld. Trial court on issue no.5, so, the findings of the ld. Trial court on issue no.5 are upheld and appeal qua the same stands dismissed, being devoid of merit. Decree sheet be prepared accordingly.
29. Since the findings of ld. Trial court on issues no.2,3,4&6 have been set aside and this court has remanded the case to the ld. Trial court, so, the parties are directed to appear before the ld. Trial court on 09.10.2014. Appellant is directed to pay the cost to the respondent in the ld. Trial court on 09.10.2014. In the above said terms, appeal filed by the appellant, stands disposed of. Record of trial court is ordered to be returned alongwith copy of this order. File be consigned to the record room.
Pronounced in the open Court on 10.09.2014 ( Pawan Kumar Matto ) Additional District Judge01 (East)/KKD/Delhi/10.09.14 RCA No.16/2013 Page No.26 of 26 10.09.2014