Delhi District Court
Yashpal Sehrawat vs Nsk Quality Foods Pvt Ltd on 1 April, 2023
IN THE COURT OF SUMIT DASS, ADDITIONAL DISTRICT
JUDGE04, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI.
MCA No.17 of 2022
In the matter of:
1. Yashpal Sehrawat
S/o late Sh. Kanwar Singh
2. Smt. Lajwanti
W/o Late Sh. Kanwar Singh
Both R/o
H.No.111C, Munirka Village,
New Delhi110067. .....Appellants
versus
1. NSK Quality Foods Pvt Ltd
Through its Managing Director/Director
Regd office at: DDA Flat No.42 A/1,
Hemkunt Colony, Greater KailashI,
New Delhi110048.
2. Sh. Kuldeep Singh
S/o late Sh. Bhartu
R/o C26, Pachhiya Mohalla,
(Gali Harijan Basti)
Village Chhawla,
New Delhi110071. ......Respondents
Date of Filing appeal: 09.06.2022
Date of Decision : 01.04.2023
MCA No.17/22
Page no.1 of 13
JUDGMENT
1. Appellants who are plaintiffs before Ld. Trial Court are aggrieved of the order dated 29.11.2018 passed by Dr. Jagminder Singh, Ld. JSCC/ASCJ, Dwarka Courts, Delhi in Civil Suit No.32206/2013 titled as "Yashpal Sehrawat & Anr v. NSK Quality Foods Pvt Ltd & Anr" whereby and whereunder Ld. Trial Court was pleased to dismiss the application U/o XI Rule 21 of the Code of Civil Procedure, 1908 (in short CPC) filed by the plaintiffs.
2. I note herein that the appellants had challenged the said order before Hon'ble High Court whereafter in terms of order dated 02.05.2022, the said petition being CM(M) No.401/2019 was dismissed as withdrawn. For the said of convenience I am quoting the said order as hereunder:
1.Mr. Abhishek Mudgal, learned Counsel for the petitioners, seeks leave to withdraw the petition as he intends to move the appropriate forum for relief. Leave and liberty is granted as prayed for.
2.Accordingly, this petition is dismissed as withdrawn.
Miscellaneous application also stands disposed of.
3. Pursuant to the appeal having been filed again, notice was directed upon the opposite party. Notice was duly served. Respondents had appeared and contested the appeal.
4. For the sake of convenience parties shall be denoted as per their rank MCA No.17/22 Page no.2 of 13 before Ld. Trial Court i.e. appellants as plaintiffs and respondents as defendants.
4.1 TCR was called and the same has also been perused.
5. Arguments were heard advanced by Sh. T.V.S.R. Krishna Shastry and Sh. R.B. Joshi, Ld counsel for the appellants and Sh. Mukesh Kumar, Ld counsel for the respondent no.2. Written synopsis were also filed and the same have also been considered.
6. Before I deal with the appeal, I note herein that the suit had chequered history.
6.1 Suit was presented before Ld. Vacation Judge in the year 2013 whereafter the Ld. ADJ vide order dated 18.06.2013 had passed interim orders directing the parties to maintain status quo with regard to ownership and possession of the land. Suit was thereafter assigned to the Court having pecuniary jurisdiction.
6.2 Subsequently in terms of order dated 21.03.2015 the suit was dismissed being barred under Section 41 (h) of the Specific Relief Act. Said order was challenged by the plaintiffs before Appellate Court and in terms of order dated 17.11.2015 the Appellate Court while disposing of the appeal had decreed the suit U/o 12 Rule 6 of the CPC and as such suit of the plaintiffs was decreed by the First Appellate Court.
MCA No.17/22Page no.3 of 13 6.3 Said order again was challenged before Hon'ble High Court and in terms of order dated 17.10.2017, the order passed by First Appellate Court was set aside in RSA No.37/2016 and I am quoting relevant part thereof as hereunder:
4.During the course of arguments, it is agreed and these appeals are disposed of by setting aside both the judgments of the trial court dated 21.03.2015 and that of the first appellate court dated 17.11.2015, with the direction to the trial court that trial court will treat the suit as maintainable, however, whether or not plaintiffs are entirety to one or more reliefs claimed under Order 12 Rule 6 CPC or that the plaintiffs are not entirety to such of the reliefs either because of nonapplicability of Order 12 Rule 6 CPC or the reliefs claimed can or cannot be granted after trial, then all such aspects will be decided by the trial court in accordance with law considering all the defences which have been put up by the appellants/defendants both on facts and law. Trial Court will proceed from the stage of allowing the appellants/defendants to file their written statements to the amended plaint. This Court is making no observations one way or the other on the merits of the disputes for or against any of the parties and all the issues which require determination in the suit will be decided by the trial court in accordance with law.
6.4 I have underlined portion of the said order for the reason that insofar as present appeal is concerned, the only issue which I have to decide is as to whether order passed by Ld. Trial Court while dismissing the application U/o 11 Rule 21 of the CPC is legally sustainable or not. This again I am emphasizing for the reason that during the course of arguments and in written synopsis other material/extraneous arguments have been putforth/canvased MCA No.17/22 Page no.4 of 13 which cannot be countenanced at this juncture in view of aforesaid observations, leaving all such aspects to be decided at the appropriate stage.
6.5 Coming to the order dated 29.11.2018 which has been passed by Ld. Trial Court and which is subject matter of the present appeal, I quickly just also reproducing the same as hereunder:
Present :Sh. Krishna Shastri, Ld. Counsel for plaintiffs. Sh. Anil Kumar Aggarwal, Ld. Counsel for defendant no.1. Proxy counsel for defendant no. 2 along with son of defendant no.2.
Arguments heard on the application u/O XI R 21 CPC r.w. Section 151 CPC to strike out the defence of defendant no.1. Ld.Counsel for plaintiff stated that the defendant no.1 is deliberately not placing on record the agreement to sell despite orders of the Court. Ld.counsel further submitted that despite specific order dated18.06.2013 and 24.08.2013 for production of original agreement to sell, defendant no.1 had not filed the same deliberately, therefore, defence of defendant no.1 is liable to be struck out.
On the other hand, Ld. Counsel for defendant no.1 stated that the application of plaintiff is based upon false facts. There is no specific direction from the Court to the defendant no.1 to place on record the original agreement to sale in question. Further it is submitted that the said original agreement to sale have already been destroyed and is not in possession of the defendant no.1. Therefore, present application is infructuous and is liable to be dismissed.
I have considered the submissions of both parties and perused the record. In the application, the plaintiff had referred two orders of the Court i.e. dated 18.06.2013 & 24.08.2013. Vide order dated 18.06.2013, the matter was fixed for filing WS on behalf of defendant no.2 and therefore, both parties were directed to file their respective original documents after exchanging the copies thereof. Vide order dated 24.08.2013, the defendants were directed to place on record copy of the agreement to sell. In both these orders, there is no specific direction to defendant no.1 to place on record original agreement to sell. Today it is submitted on behalf of defendant no.1that the original agreement to sell which was published on 29.05.2013in newspaper Navbharat Times regarding which present application is moved, has already been destroyed and therefore, he is unable to bring the same. However, he stated that the photocopy of same with him. Therefore, in view of the facts mentioned in the application, documents on record and submissions made on behalf of defendant no.1, Court finds that present application moved on behalf of plaintiff u/O XI R 21CPC r.w. Section 151 CPC is without any merit and same stands dismissed.MCA No.17/22
Page no.5 of 13 Ld. Counsel for defendant no.1 also raised question on maintainability of the suit as the plaintiff is seeking declaration to declare null & void to the agreement to sell executed between the defendants which was published on 29.05.2013 in newspaper Navbharat Times, and the said document has already been destroyed and not is in existence. Ld. Counsel further stated that the defendants undertake not to use any more for any purpose to the document i.e. Agreement to sell published on 29.05.2013 in newspaper Navbharat Times. Hence, in view of the facts & circumstances, now put up for clarification regarding maintainability of the suit qua prayer clause 1 of the amended plaint on 07.02.2019.
6.6 Now there is reference to two orders dated 18.06.2013 and 24.08.2013 and again I am also quickly referring the same. Now vide order dated 18.06.2013 status quo order was passed and that order was passed when infact no Written Statement was filed. Operating para of the same reads as under:
18.06.2013 The learned counsel for the plaintiffs has relied upon case law.
Be that as it may, defendant No.1 has not been served and defendant No.2 has not filed his written statement, however, it is admitted position at bar that so far defendant No.2 has not been granted "No Objection" by the Revenue Authorities to sell his share of land to defendant No.1. The possession of undivided half share has also not been handed over to defendant No.2 by defendant No.1.
In view of the matter, let written statement be filed by defendant No.2 within four weeks from today with advance copy to the other side, who may file replication thereto within two weeks thereafter. Parties are directed to file their respective original documents after exchanging the copies thereof.
Let defendant No.1 be served on filing of fresh PF/RC, within one week.
Till the next date of hearing, parties shall maintain statusquo with regard to ownership and possession of suit land i.e. agricultural land measuring 10 Bighas 14 Biswas, comprising in Khasra Nos.9/23/2 (216), 24/2 (2
16), 25/2 (25)m 13/3/1 (10), 4/1 (10), 5/1 (017), bearing Khatauni No.162/150 of year 2001/2002, situated in the revenue estate of village Rewla Khanpur, Tehsil Palam (now Tehsil Kapashera), New Delhi.
MCA No.17/22Page no.6 of 13 Next order is dated 24.08.2013 - vizaviz agreement to sell and there is reference in the order dated 19.08.2014 also in this regard which I am also quoting as hereunder:
24.08.2013 Ld. counsel for defendant no.1 submits that he wants to file a formal reply to the application under Order 6 Rule 17 CPC. The same be filed within two weeks.
The defendants are also directed to place on record the copy of the agreement to sell within two weeks.
...XXXXX...
19.08.2014 There are three more applications, one for consideration on subsequent developments for passing order on the application u/o 39 R1 & 2 CPC, the other u/o 11 R 21 CPC moved on behalf of plaintiff for striking out the defence of the defendant no.1, one application is also pending for placing on record the original agreement between defendant no.1 & 2. The agreement placed by defendant is itself not a original one.
6.7 Again this aspect was reagitated on 10.02.2015.
Relevant portion of the order dated 10.02.2015 is reproduced as hereunder:
Ld counsel for plaintiff during the course of arguments has further reiterated the point about non production of the original agreement to sale till date. Ld counsel for defendant no.1 submits that the original agreement to sell was in respect of the exclusive property of defendant no.2 as well for his undivided share in the suit property as sale deed was subsequently executed in respect of exclusive property of defendant no.2, the original agreement to sale was immediately destroyed after execution of the sale MCA No.17/22 Page no.7 of 13 deed and a separate agreement to sale only in respect of the share of defendant no.2 in the suit property was executed which has already been filed on record.
Ld counsel for plaintiff submits that agreement to sale is not disclosing material particular as to the sale consideration. Ld. Counsel for defendant no.1 submits that it was not relevant for the present suit and it was exclusively a private dealing between defendant no.1 & 2.
Put up on 21.02.2015 for orders on both the applications under Order 6 Rule 17 CPC as well as application under Order 39 Rule 1 & 2 CPC in the light of contentions raised and also on the points raised on 19.12.2014 and on the last date of hearing.
6.8 Contents of the application which had been relied by the plaintiffs are reproduced as hereunder:
1.The plaintiffs have filed their Objections to the Submissions dated
07.09.2013 and Additional Submissions dated 27.09.2013 filed by Defendant No.1 in the above suit. The contents of the same may be read as part and parcel of this application and the same are not being repeated herein for the sake of brevity.
2.That in spite of two specific orders dated 18.06.2013 and 24.08.2013 for production of original Agreement to Sell, Defendant No.1 failed to comply with the said orders. The disobedience is intentional, willful and deliberate on the part of Defendant No.1. Hence, the defence of Defendant No.1 is liable to be struck out under law and Defendant No.1 is to be placed in the same position as if he had not defended.
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to strike out the defence of Defendant No.1 and to place him in the same position as if he had not defended and to pass such other and further orders as may be deemed just and fit in the fact and circumstance of the case.
MCA No.17/22Page no.8 of 13
7. If I look at the application, it speaks of objections to the submissions dated 07.09.2013 and additional submissions dated 27.09.2013 which have been filed by defendant no.1 in the suit. Now I may add herein that the application infact ought to have been specific application and not like the present application which has been filed i.e. response to the submissions made which unnecessarily burdens the file or in a manner enlarged scope of litigation.
8. During the course of arguments, Ld counsel for the appellants had contended that infact respondents were directed by the Ld. Trial Court to produce the original Agreement to Sale and now they have failed to produce the same and later on propounded plea that the original Agreement to Sale has been destroyed. Such pleas is a malafide one and the Agreement to Sale inter se which was referred to in public advertisement has been destroyed.
8.1 On the other hand Ld counsel for the respondents no.1 and 2 both submitted that similar suit was filed before Revenue authority concerned and infact Agreement to Sell was only a mode of transfer the property in favour of the respondent no.1 which stood transferred by way of Sale Deed and this specious plea has been harped upon by the plaintiffs to sustain and prolong the life of the litigation.
8.2 In this regard Order 11 Rule 21 of the CPC reads as under:
Noncompliance with order for discovery. [(1)]Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be MCA No.17/22 Page no.9 of 13 placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may appply to the Court for an order to that effect and [an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard].
[(2)]Where an order is made under subrule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action] 8.3 In this regard, I may rely upon the judgment of the Hon'ble High Court of Delhi passed in the case of Maj Retd Sukesh Behl & Anr v. Koninklijke Philips Electronics NV reported in 2016 SCC Online Del 352. Relevant portion of the same reads as hereunder:
17. In Chinnappan versus Ramachandran, AIR 1989 Mad 314, the High Court of Judicature at Madras following the decision in Sithamalli Subbayyer (Supra) held as under:
"It may now be considered whether the application filed by the appellant before the court below for the exercise of powers under Order 11, Rule 21, C.P.C. was maintainable. Order 11, Rule 21, C.P.C. to the extent to which that provision is relevant on the facts of this case, states that where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a defendant, have his defence, if any, struck out and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard. It is thus seen that the remedy of having the defence of a defendant struck out would arise only when he fails to comply with an order to answer interrogatories or for discovery or inspection of documents and not in other cases. In this case, the respondent was not delivered interrogatories for being answered by an order of Court under Order 11, Rule 1, C.P.C. Likewise, the respondent was not directed by an order of court to make discovery on oath of the documents in his MCA No.17/22 Page no.10 of 13 possession or power relating to any matter in question in the suit under Order 11, Rule 12, C.P.C. No order for inspection of documents was also passed against the respondent under Order 11, Rule 12, C.P.C. The exercise of the power vested in the Court to strike out the defence of a defendant and to place him in the same position as if he had not defended the suit is limited under Order 11, Rule 21, C.P.C. to cases where the defendant fails to comply with an order to answer interrogatories or an order for discovery or inspection of documents. In other words, an order under Order 11, Rule 21, C.P.C. cannot be passed in cases falling outside the purview of Order 11, Rules 12 and 18; C.P.C. In Sithamalli Subbayer v. Ramanathan Chettiar : (1924) 46 MLJ 350, an order was passed by Court under Order 11, Rule 14, C.P.C. directing the plaintiff to produce some documents upon oath and on the production of some, documents, the defendant inspected a few of them and finding that some documents directed to be produced were not produced, applied to the court to take action under Order 11, Rule 21, C.P.C. dismissing the suit. That application was dismissed holding that Order 11, Rule 21, C.P.C. did not apply to cases of noncompliance with an order for production and, the dismissal of the application was upheld by this Court.
***** It is clear from the decision referred to above, that failure to produce documents directed to be produced by an order of Court passed under Order 11, Rule 14, C.P.C. does not fall under Order 11, Rule 21, C.P.C. To similar effect is the decision in Subramania Iyer v. Bonier Cooty Haji: AIR 1933 Mad 870. In that case also, for failure to produce certain documents pursuant to orders passed under Order 11, Rule 14, C.P.C. the suit was dismissed and in considering the correctness of this order, Pandalai J. observed as follows "..........From the terms of the Judge's order as well as from the previous orders for production which are on the record, there is no doubt that those orders were passed under Order 11, Rule 14, applied for orders under that provision. This being so, it would be enough to dispose of this appeal to say that the learned Judge had no authority to dismiss the plaintiffs suit for disobedience of an order under Order 11, Rule 14, C.P.C. That was decided in so far as this Court is concerned in Subbayer v. Ramanathan Chettiar : (1924) 46 MLJ 350 which followed a decision of the Allahabad High Court in Lyalpur Sugar Mills Co. Ltd. v. Ramchandra Gursahai Cotton Mills Co. Ltd :
AIR 1922 All 235 "MCA No.17/22
Page no.11 of 13 It is thus seen that this Court has consistently taken the view that a failure to produce documents directed to be produced by an order of court passed under Order 11, Rule 14, C.P.C. does not enable the court to exercise its powers under Order 11, Rule 21, C.P.C. In view of this, the application filed by the appellant seeking the assistance of the court to exercise its powers under Order 11, Rule 21, C.P.C. was misconceived and not maintainable. ........"
8.4 In the eventuality, if a party fails to comply with the direction to produce the document - even otherwise in the present case the defendants have claimed that the same has been destroyed, the said plea will only be looked at the final stage and defence of the defendants cannot be rejected or discarded in its entirety. Appropriate course of action is to take or record version of the defendants and to test the same by putting the matter to trial rather than further stalling the further progress of the suit.
8.5 I note herein that insofar as present appeal is concerned I have taken the application to one U/o 11 Rule 21 CPC qua which appeal lies by virtue of Order 43 Rule 1 (f) CPC.
8.6 Again at the cost of repetition as I have mentioned earlier the application, which is being agitated upon is quite vague and sketchy.
9. Considering the totality of facts and circumstances of the case, insofar as application U/o 11 Rule 21 of the CPC is concerned, it is not a case wherein the defendants must be visited with harsher outcome or the defence have to be struck off for the reason that otherwise also insofar as consideration aspect is concerned there are documents to the effect i.e. Sale Deed which has been executed between the parties to the suit in furtherance of Agreement to Sale.
MCA No.17/22Page no.12 of 13 All such facts and conduct of the parties etc in the light of the facts of the case as well as etched in the ordersheets would be considered at a later stage i.e. at the stage of judgment. However, no ground is made out for striking of the defence of the defendants as sought for in view of aforesaid discussion.
10. Appeal stands disposed of accordingly.
Parties are directed to appear before Ld. Trial Court on the date already fixed.
Copy of this order be sent to Ld. Trial Court along with its record. No order as to cost.
Appeal files be consigned to record room.
Announced in the open Court on 01.04.2023.
(Sumit Dass) Additional District Judge-04 South West District, Dwarka Courts, New Delhi.
MCA No.17/22Page no.13 of 13