Delhi High Court
Parmila Singh & Anr vs Ashok Saluja on 7 September, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th September, 2018
+ RSA 21/2018, CM No.5119/2018(stay) & CM No.5120/2018(u/O.41
R-27 CPC)
PARMILA SINGH & ANR ..... Appellants
Through:Mr. K. Sunil with Mr. G.S. Singh &
Mr. Mani Shankar, Advs.
Versus
ASHOK SALUJA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 19th
December, 2017 in RCA No.137/2017 of the Court of Additional District
Judge-04, South-West] of dismissal of First Appeal under Section 96 of the
CPC preferred by the appellants/defendants against the judgment and decree
[dated 29th August, 2017 in M No. 67/2016 of the Court of Additional Senior
Civil Judge, South-West, Dwarka Courts] allowing the suit filed by the
respondent/plaintiff for recovery of possession of property no. C-11, Second
Floor, Jeevan Park, Pankha Road, New Delhi from the appellants/defendants.
2. This appeal came up before this Court first on 9 th February, 2018 and
has thereafter been adjourned from time to time without the aspect of
admissibility thereof being considered.
3. The sine qua non for entertaining a Second Appeal being that it should
raise a substantial question of law, the counsel for the appellants/defendants
RSA No.21/2018 Page 1 of 10
has been heard and the copies of the Suit Court Record and the First
Appellate Court record annexed to the memorandum of appeal perused.
4. The counsel for the appellants/defendants has argued (i) that the
respondent/plaintiff sued for possession on the basis of title i.e. a registered
sale deed in his favour; (ii) however, the respondent/plaintiff did not prove
any sale deed; (iii) attention in this regard is invited to para 4.1 of the
judgment of the Suit Court recording that the respondent/plaintiff, along with
his affidavit by way of examination-in-chief, tendered as Ex.PW1/A the
photocopy of the sale deed but which was de-exhibited and marked as Mark-
A; and (iv) that without the respondent/plaintiff having proved title, the suit
for recovery of possession could not have been allowed.
5. Attention of the counsel for the appellants/defendants has been drawn
to para 4.2 of the judgment of the Suit Court where it is recorded that the
respondent/plaintiff, besides examining himself, had also examined as PW-2,
official from the office of Sub-Registrar-II with whom the sale deed was
registered and who had proved photocopy of the sale deed as Ex.PW2/1 and
the original sale deed had been seen and returned.
6. Attention of the counsel for the appellants/defendants is also invited to
para 5 of the judgment of the Suit Court recording that the
appellants/defendants, in spite of a number of opportunities granted by the
Suit Court, failed to cross-examine any of the witnesses of the
respondent/plaintiff and the appellants/defendants also failed to lead any
evidence of their own.
RSA No.21/2018 Page 2 of 10
7. I have enquired from the counsel for the appellants/defendants, that in
the face of aforesaid, how is it open to the appellants/defendants to contend
that the sale deed, vide which the respondent/plaintiff claimed title, was not
proved.
8. The counsel for the appellants/defendants invites attention to the
evidence recorded on 4th July, 2017 of the official of the office of the Sub-
Registrar-II and contends that the said witness had not brought the copy of
the registered sale deed on the record of the Sub-Registrar-II and had only
brought the register containing the entries of registration of sale deed.
9. There is no merit in the aforesaid contention also. The testimony of the
official of the office of the Sub-Registrar-II examined as PW-2 by the
respondent/plaintiff recorded on 4th July, 2017 by the Suit Court and
photocopy of which has been filed by the appellants/defendants themselves
at page 299 of the Paper Book, is as under:-
"I say that I am a summoned witness. I have brought the
summoned record i.e. sale deed register which contains the
record of sale deed registered with us vide registration
no.9210 in additional book no.1, volume no.14733 on pages
14 to 21 on dated 09/05/2007 which is earlier marked as
Mark A in the testimony of PW1 on 25/05/2017 and now the
same is exhibited as Ex.PW2/1 (OSR).
xxxxxxxx by Ms. Meenakshi Kumari learned proxy counsel
for defendant.
RSA No.21/2018 Page 3 of 10
The cross examination of this witness cannot be
allowed to the defendant as on 30.11.2016 it was ordered by
the court that the same shall be allowed only after the
payment of previous cost and the same has not been paid
yet."
10. The counsel for the appellants/defendants, on being asked to show the
document on which Ex.PW2/1 was endorsed, has drawn attention to pages
300 to 310 of the Paper Book being a photocopy of the sale deed.
11. The aforesaid witness claimed to have brought to the Court the
summoned records i.e. sale deed register which contains the record of the
registered sale deed and has proved the photocopy of the sale deed as
Ex.PW2/1. From the Alphabets "OSR" (i.e. Original Seen and Returned)
mentioned against Ex.PW2/1, it is clear that the original of the photocopy of
the sale deed was seen.
12. The counsel for the appellants/defendants has, however, contended
that the sale deed has to be proved in accordance with law by identifying the
signatures thereon. Reliance is placed on my judgments in Prem Chandra
Jain Vs. Sri Ram (2009) 113 DRJ 617 and Sanyogta Prakash Vs. Dhira
Bala Malhotra (2010) 115 DRJ 109.
13. There is no merit in the aforesaid contention also.
14. As far as the judgments cited are concerned, what was for
adjudication therein was, whether a party seeking to prove a document by
secondary evidence, instead of by primary evidence, is required to make an
application to the Court and seek permission of the Court therefor. It was
RSA No.21/2018 Page 4 of 10
held that no such application and permission is required and it is open to the
parties to a lis to prove a document either by primary or by secondary
evidence.
15. It is well settled that a judgment is a precedent on what is for
adjudication before the Court and not on what may be inferred therefrom and
courts should be careful in applying the precedents inasmuch as judgments
only declare the law in the facts of the case. Reference in this regard may be
made to Punjab National Bank Vs. R.I. Vaid (2004) 7 SCC 698, Natural
Resources Allocation, In Ref. Special Reference No.1 of 2012 (2012) 10
SCC 1, Sudhir Malhotra Vs. NCT of Delhi 2008 SCC OnLine Del 605 (SLP
(Crl.) No.6983/2008 preferred whereagainst was dismissed vide order dated
3rd October, 2008) and Rahul Oberoi Vs. Sheela Oberoi
MANU/DE/1849/2018.
16. The respondent/plaintiff in the present case has examined the witness
from the office of the Sub-Registrar-II, with whom the sale deed vide which
the respondent/plaintiff claimed title, was registered. The said witness
brought the sale deed registered with the office of the Sub-Registrar-II and
which was seen by the counsel for the appellants/defendants and exhibit
mark was put on the photocopy before the Court in token of admission
thereof in evidence. The counsel for the appellants/defendants at that stage
did not raise any objection to the admission into evidence of the photocopy
of the sale deed. Not only so, the counsel for the appellants/defendants did
not even lead any evidence on behalf of the appellants/defendants. Further, a
perusal of the written statement of the appellants/defendants to the suit also
shows the plea of the appellants/defendants being that the sale deed pleaded
RSA No.21/2018 Page 5 of 10
by the respondent/plaintiff in the plaint was a forged and fabricated
document. The appellants/defendants themselves claimed to be an
agreement-purchaser from another person (not a party to the suit), in
possession of the property. On the pleadings of the parties, the following
issues were framed in the suit on 30th November, 2016 :-
"i) Whether the plaintiff is entitled to possession of the suit
property as prayed for? OPP.
ii) Whether the documents relied upon by the plaintiff are
forged and fabricated? OPD."
17. It would, thus be clear that the onus of proving that the documents
vide which the respondent/plaintiff claimed title i.e. sale deed aforesaid was
forged and fabricated, was on the appellants/defendants. The appellants/
defendants did not dispute the existence of the sale deed. Rather, the plea of
the appellants/defendants was, that the sale deed was forged and fabricated
and which plea admits existence of the sale deed.
18. In the aforesaid state of pleadings and when the appellants/defendants
chose not to cross-examine the respondent/plaintiff or his witnesses or lead
their own evidence, the appellants/defendants in this Second Appeal cannot
be permitted to urge that the sale deed has not been proved in accordance
with law. The challenge to proof of sale deed has to be judged in the context
of the pleadings and not in vacuum. The purpose of framing of issues is that
the parties know what they are required to prove. A party to a suit, as the
appellants/defendants, who admits the existence of the document and only
challenges the same on the ground of being forged and fabricated, cannot at
RSA No.21/2018 Page 6 of 10
a later stage be heard to argue that existence of the documents was not
proved and spring a surprise, that too at the stage of Second Appeal.
19. No other argument was urged by the counsel for the
appellants/defendants. However, counsel for the appellants/defendants,
during the dictation was interrupting and was asked to wait till the
completion of the dictation. He has now been heard.
20. The counsel contends i) that since there was no original sale deed, the
notation of 'OSR' is obviously wrong; ii) that the appellants/defendants were
not allowed to cross-examine the respondent/plaintiff and were not allowed
to lead the evidence; iii) reliance is placed on Roman Catholic Mission Vs.
State of Madras 1966 (3) SCR 283 holding that a photocopy is not
admissible in evidence; and, iv) that the First Appellate Court did not decide
the issues mandated in Order 41 Rule 31; reliance is placed on H. Siddiqui
Vs. A. Ramalingam (2011) 4 SCC 240.
21. Though such conduct of raising these arguments after dictation was
commenced when the counsel for the appellants/defendants had concluded
his arguments is not to be accepted, but I have considered the aforesaid
contentions and do not find any merit therein as well.
22. The argument with respect to proof of the sale deed is in ignorance of
the provisions of the Registration Act, 1908 and the Delhi Registration
Rules, 1976 prescribing the procedure for registration of documents. Per
Section 32 of the Registration Act, presentation of a document for
registration has to be by the person executing the document or by
representative or assign or agent of such person. Section 32A requires the
RSA No.21/2018 Page 7 of 10
photographs and finger print of the person/s presenting the document for
registration to be affixed thereon. Section 34 requires the Registrar to
enquire from the persons presenting the documents, whether the document
was executed by them or by the person by whom it purports to be executed
and to satisfy himself about the identity of the persons presenting the
document and in the event of presentation by an agent, the authority of such
agent. Section 51 prescribes the register books to be maintained by the
Registrar with Book I being prescribed for entering or filing all documents or
memorandums registered under Sections 17, 18 & 89 of the Act and which
relate to immoveable property and are not Wills. Section 52 requires the
Registrar to have endorsed before himself the signature of every person
presenting the document for registration at the time of presentation thereof.
Section 58 prescribes the particulars to be endorsed on documents admitted
for registration and again provides for signatures to be endorsed on every
document admitted for registration, not only of the persons presenting the
same but also of persons examined by the Registrar in reference to such
document. Section 59 requires the Registrar to affix his own signature to all
the endorsement aforesaid. Rule 29 of the Delhi Registration Rules requires
the Registrar to paste in Book I carbon copy of the original after comparing
the same with the original.
23. From the aforesaid procedure, it is clear that what was brought before
the Court by the witness from the office of the Sub-Registrar of documents
was the carbon copy of the sale deed in Book I required to be maintained by
the Sub-Registrar.
RSA No.21/2018 Page 8 of 10
24. Supreme Court in Prithi Chand Vs. State of Himachal Pradesh
(1989) 1 SCC 432 has held the carbon copy to be primary evidence within
the meaning of Explanation 2 to Section 62 of the Evidence Act, 1872. The
sale deed was thus admitted into evidence after the primary evidence had
been brought before the Court and was seen by the Court and by the counsel
for the appellant/defendant.
25. Rule 31 of Order 41 of the CPC requires the judgment of the First
Appellate Court to state points for determination, decision thereon, the
reasons for the decision and if the Court disagrees and the judgment is
reversed, relief to which appellant is entitled. There are number of
pronouncements of the Courts with respect to the said rule and reference
may be made to Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC 179
which inter alia holds that if the First Appellate Court is in agreement with
the findings of the Suit Court, then expressing the general agreement
suffices. Santosh Hazari supra was cited with approval in H. Siddiqui supra
cited by the counsel for the appellant. In H. Siddiqui surpra, the First
Appellate Court, without addressing the controversy raised in the first
instance had proceeded to deal with the subsequent arguments. It was owing
thereto that the First Appellate Court was directed to determine afresh. On
the contrary the First Appellate Court in the present case has
reproduced/recorded the issues framed in the suit, the witnesses examined in
the suit, the evidence led and thereafter observed that no illegality,
irregularity or impropriety was found in the judgment appealed against. It
has been held in Santosh Hazari supra that it is not essential for the First
Appellate Court when it agrees with the Suit Court, to reproduce each and
every reason given by the Suit Court.
RSA No.21/2018 Page 9 of 10
26. There is no difference in the appellants/defendants not choosing to
cross-examine and lead any evidence and being prevented from doing so. It
is not as if the appellants/defendants were prevented from cross-examining
or leading their own evidence by illegal means. The appellants/defendants
were so prevented because they had failed to comply with the conditions,
subject to which such a right was vested. The said argument before this
Bench is even otherwise misconceived. It is borne out from the record that
CM(M)912/2012 preferred by the appellants/defendants against the order in
the suit closing their said rights was dismissed.
27. Thus, the additional arguments also do not entitle the
appellants/defendant to entertainment of this Second Appeal, which is not
found to raise any substantial question of law and no merit is found therein.
28. Dismissed.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 07, 2018 'ak/bs'..
RSA No.21/2018 Page 10 of 10