Delhi District Court
Mr. Anil Gupta & Ors. vs . Sh. Mahendra Sagar & Anr. on 29 January, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 346/07
Mr. Anil Gupta & Ors. Vs. Sh. Mahendra Sagar & Anr.
ORDER
1. This order shall decide the application U/o 11 R 1, Order 11 R 12 and 14 r/w Section 151 CPC filed on behalf of the plaintiff for service of interrogatories on the defendant as well as for discovery of the documents.
2. It is averred in this application that the plaintiff has filed the present suit for permanent injunction and the defendant no. 2 has filed the written statement which has been adopted by defendant no. 1 wherein it has been stated by the defendant no. 2 that the lower ground floor of the suit property is owned by Kumar Bros. Company and it has been stated that the said Kumar Bros. Company being the owner should be impleaded and not the present defendants i.e. Sh. Mahendra Sagar and Sh. Pradeep Sagar. It is averred that the main grievance of the plaintiff in the suit is that the defendants in this suit have encroached upon the set back area of the building, thereby stopping the egress and ingress of the plaintiff to the underground water tank in the set back area on the back side of the building as well as to the pump house, operation of which is required Suit No. 346/07 Mr. Anil Gupta & Ors. Vs. Sh. Mahendra Sagar & Anr. 1/6 everyday for lifting the water to the overhead tanks. It is averred that the defendants have not filed any documents showing ownership of the lower ground floor. The suit is at the stage of evidence of plaintiff. It is contended that in order to save costs and expedite the decision of the suit the defendants may be directed to discover and produce the documents of ownership of the lower ground floor of the property no. E58, Greater Kailash I, New Delhi48 and answer the interrogatories as mentioned from point (i) to
(v) of the application.
3. The defendants have filed reply to this application. The allegation that the defendants have encroached upon the set back area of the building is denied and is stated to be false and baseless. It is contended that vide order dated 11.06.2007, the plaintiff was directed by the Ld. ADJ/Vacation Judge to implead 'Kumar Bros and Company' as the defendant but the plaintiff had not obeyed this order till date. It is averred that Article 137 of the Limitation Act is attracted which provides for three years' limitation period from the date when the right accrued. It is averred that if any discovery was sought to be made it should have been made immediately after the order dated 11.06.2007 was passed. It is contended that the application has only been filed to delay the proceedings and there was no occasion to file the interrogatories. It is prayed that the application being time barred be dismissed.
Suit No. 346/07 Mr. Anil Gupta & Ors. Vs. Sh. Mahendra Sagar & Anr. 2/6
4. Oral arguments were advanced by counsel for the parties. Ld. counsel for plaintiff relied on 166 (2010) DLT 523 titled Canara Bank Vs. Rajiv Tyagi and Associates & Anr. and 1996, Rajdhani Law Reporter 60 titled A.K. Aggarwal, Vs. Shanti Devi.
5. Heard and perused.
6. It is important to note that defendants in their reply no where state that the interrogatories are vexatious or scandalous or even irrelevant and the two basic defences taken are that the plaintiff has not impleaded Kumar Bros and Company as defendant despite the order dated 11.06.2007 and the application is time barred. The argument of the counsel for defendants regarding bar of limitation would perhaps have had merit but for the order dated 03.10.2011 which was pointed out in the course of arguments by counsel for plaintiff. The order dated 03.10.2011 is relevant and is reproduced herein below: "Present: Sh. R.S. Chabra, counsel for plaintiff.
Sh. J.R. Pradhan, counsel for defendant.
On last date of hearing an objection was taken that plaintiff has not complied with order dated 11.06.2007. Today, it is stated by counsel for defendant that as directed on 11.06.2007, plaintiff was directed to implead Kumar Brothers as party. However, it is stated that defendants itself are Kumar Brothers, therefore, there is no need to implead Kumar Brothers as party. It is also stated by counsel for Suit No. 346/07 Mr. Anil Gupta & Ors. Vs. Sh. Mahendra Sagar & Anr. 3/6 defendant that ground floor in question is occupied and owned by defendants.
There was on more direction where the plaintiff submitted that he will file authority of one Sh. Arvind Jain written as Arun Jian who is resident of second floor.
Counsel for plaintiff submitted that Sh. Arvind Jian has filed separate suit against the defendants which is pending in Saket Court. Therefore, there is no need to bring Sh. Arvind Jain alias Arun Jain in this case.
In these circumstances, now controversy as to compliance of order dated 11.06.2007 is resolved.
Matter is listed for PE.
Put up for PE on 24.01.2012."
7. Perusal of the aforesaid order reveals that it was stated by counsel for defendants themselves that the defendants were Kumar Bros and Company and there was no requirement to implead Kumar Bros and Company as a party. On 11.06.2007 the specific contention of the counsel for the defendants was that M/s. Kumar Bros and Company was the owner of the lower ground floor. Apparently, it has not come out in the written statement as to whether Kumar Bros and Company is a corporation/company or a partnership firm and in the parawise reply on merits in para two it was contended by the defendants that Kumar Bros and Company was the owner of the lower ground floor and not the defendants. In 1996 Rajdhani Law Suit No. 346/07 Mr. Anil Gupta & Ors. Vs. Sh. Mahendra Sagar & Anr. 4/6 Reporter 60 (Supra) it has been held by the Hon'ble Delhi High Court that Order XI of the CPC contains salutary provisions which are intended to curtail evidence thereby expediting trial of the suit and they have to be liberally used and parties have to be encouraged to use them in the course of trial. It was further held that the provisions of Order 11 CPC do not deserve a technical or truncated approach. In that case also the suit was at the stage of plaintiff's evidence. Further, in case of Canara Bank (Supra) it was held that the test to be applied in dealing with an application for discovery by interrogatories is not whether it can form subject matter of cross examination or not but is of relevancy and expediency. Considering the apparently conflicting submissions on behalf of the defendants which have come on record vide orders dated 11.06.2007 and 03.10.2011 the interrogatories that are sought to be administered to the defendants appear to be relevant and expedient and would in fact lead to curtailing the litigation time consumed and shall also help in crystallizing the cross examination. The settled law is that a hyper technical approach can not be taken and in any case the limitation period for this application can be taken to begin from 03.12.2011 when the submission was made that the defendants were Kumar Bros and Company and from that date the present application filed on 31.07.2013 can not be said to be time barred. In view of the aforesaid discussion, the application of the plaintiffs is Suit No. 346/07 Mr. Anil Gupta & Ors. Vs. Sh. Mahendra Sagar & Anr. 5/6 allowed. The defendants are directed to answer the interrogatories as mentioned in the present application from points (i) to (v) and also to produce the documents of ownership of lower ground floor of property no. E58, Greater KailashI, New Delhi - 110048 for inspection on next date.
Announced in the open court ANJANI MAHAJAN
On 29.01.2014 Civil Judge - 10 (Central)
29.01.2014
Suit No. 346/07 Mr. Anil Gupta & Ors. Vs. Sh. Mahendra Sagar & Anr. 6/6