Delhi District Court
Smt. Kavita Kumari vs Sh. Rakesh Raman on 29 September, 2014
IN THE COURT OF SH. KULDEEP NARAYAN
ADDITIONAL DISTRICT JUDGE-18: CENTRAL DISTRICT
TIS HAZARI COURTS: DELHI
RCA No. 01/2014
Unique ID No. -02401C0 57249 2012
1. Smt. Kavita Kumari
W/o Sh. Rakesh Raman
R/o 52/64, A-5, Gali No.19
Bai Basti, Anand Parbat,
New Delhi-110005.
..... Plaintiff
VERSUS
1. Sh. Rakesh Raman
S/o Sh. Saroop Singh
2. Sh. Saroop Singh
S/o Sh. Ramji Lal
3. Smt. Basanti Devi
W/o Sh. Saroop Singh
4. Ravinder Singh
S/o Sh. Saroop Singh
All R/o T-514-B, Hill Road,
Near Budh Mandir, Baljit Nagar
New Delhi-110008.
..... Defendants
Date of Institution : 07/12/2012
Date on which reserved for judgment : 05/09/2014
Date of Decision : 29/09/2014
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APPEAL UNDER SECTION 96 CPC AGAINST THE JUDGMENT AND
DECREE DATED 07.11.2012 PASSED BY LD. CIVIL JUDGE III, (NORTH).
DELHI IN CIVIL SUIT NO. 1126/10 TITLED " SMT. KAVITA KUMARI VS. SH.
RAKESH RAMAN & ORS."
JUDGMENT
1. By way of present appeal, the appellant (plaintiff) impugned the judgment and decree dated 07.11.2012 passed by the Ld. Civil Judge III (North) in CS No. 1126/10 titled as " Smt. Kavita Kumari Vs Rakesh Raman & Ors" (for short " the impugned judgment" ) by which suit was dismissed. After admitting appeal, Trial Court record was summoned. Notice of appeal was served upon the respondents. The respondent no. 1 filed reply to the appeal.
2. I heard arguments on both the sides and perused the entire material available on record as well as on record of the Ld. Trial Court.
3. Briefly stated the appellant (plaintiff) filed a suit against the respondents (defendants) who are her husband and in-laws, for recovery of gold and silver ornaments of her " Stridhan" or in the alternative, for a sum of Rs. 2,10,000/- towards the value of the said ornaments. The facts as per the pleadings of both the parties have been mentioned in detail in the impugned judgment and are not being repeated here for the sake of brevity.
4. Vide order dated 25.09.2007 the Ld. Trial Court framed the following issues:
1. Whether the suit of plaintiff is not maintainable as there is no cause of action against the defendants? (OPD).
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2. Whether the plaintiff is entitled for the recovery of ornaments as claimed? (OPP).
3. Whether the plaintiff is entitled for any interest as claimed? (OPP).
4. Relief.
In support of her contentions plaintiff got herself examined as PW1, one Sh. Chunni Lal (PW1) and her father Sh. Hemchand as PW2. The cross-examination of the plaintiff was not completed and no cross-examination was conducted at all of Sh. Hemchand (PW2). Vide order dated 25.08.2010 of the Ld. Trial Court the defendants were proceeded ex-parte. Subsequently, an application under Section 114 read with Section 151 CPC moved on behalf of the defendant was also dismissed vide order dated 06.06.2012.
5. By way of impugned judgment, the Ld. Trial Court decided issues no. 2 and 3 against the plaintiff, holding that plaintiff is not entitled for recovery of the jewellery articles or any interest as claimed.
6. Feeling aggrieved, the appellant (plaintiff) filed the present appeal. The main grounds of appeal taken by the appellant are that the Ld. Trial Court misconstrued the material evidence i.e. DD No. 6A dated 14.05.1998 available on record and over looked documentary evidence filed by the defendants particularly the document " Fard Maqmuzgi stridhan" dated 03.01.1999 ; " that the Ld. Trial Court over looked the inconsistent and self- destructive statement in written statement regarding the giving of Jewellery at the time of marriage ; that the Ld. Trial Court gravelly erred to inter-link, " Peshbandi report" which was got recorded by the husband of the plaintiff in the Police Station, Patel Nagar ; that the Ld. Trial Court caused miscarriage of RCA No. 01/2014 Smt. Kavita Kumari Vs. Rakesh Raman & Ors. 3/8 justice and ignored the documentary evidence of Ex. PW1/1 and Ex. PW1/2 and rejected the substantive evidence both oral and documentary available on record and returned a finding based on conjectures and Surmises. Per contra, it is contended by the respondent that the Ld. Trial Court correctly appreciated evidence and gave a correct finding based on pleading evidence and other material placed on record and therefore there is no illegality in the impugned judgment.
7. Having heard the submissions on both the sides and perused the entire material available on record, I find substance in the submissions of counsel for the appellant.
As per Trial Court record, in support of her contentions the plaintiff got herself examined as PW1, one Sh. Chunni Lal (PW1) and her father Sh. Hemchand as PW2. The cross-examination of plaintiff was not completed and no cross-examination was conducted of her father Sh. Hemchand (PW2). By way of impugned judgment, the Ld. Trial Court while deciding issues no. 2 and 3, referred to one document i.e. DD No. 6A dated 14.05.1998 (Ittla Peshbandi) registered at Police Station Patel Nagar wherein it was noted down that the plaintiff was going to live with her husband in a new house alongwith the household goods i.e. goods given by her parents as well as by her in-laws. As per the testimony of PW1 the aforesaid DD entry was written at the behest of her husband i.e. defendant no. 1 and she did not lodge any complaint about the said DD entry as she wanted to live with her husband and did not want to annoy him. She had not lodged any complaint in the Police Station regarding the said DD entry even after her separation from her husband.
RCA No. 01/2014 Smt. Kavita Kumari Vs. Rakesh Raman & Ors. 4/8 In view of the explanation furnished by PW1 during her cross- examination, the finding of Ld. Trial Court about the absence of any plausible explanation for not filing the complaint by the plaintiff, does not appeal to commonsense. It is not explained what more explanation was required on behalf of the PW1 in this regard. It is noteworthy here that the said DD No. 6A dated 14.05.1998 was not proved as per law as the writer of the said DD entry was not examined in evidence. It is also not understandable on what basis the Ld. Trial Court placed reliance on the said DD No. 6A to draw an adverse inference against the plaintiff. The Ld. Trial Court also found it difficult to believe the testimony of plaintiff, without any reason again, that she could not remember the fact qua the said DD No. 6A in her complaint filed under Section 498 I.P.C. The Ld. Trial Court further assumed that after strained relationship plaintiff moved out of the house of in-laws by taking her entire dowry articles alongwith the jewellery etc. It was also observed that the plaintiff could not offer any plausible explanation qua the DD No. 6A dated 14.05.1998 which was allegedly written at the behest of her husband that she got all the dowry articles including her jewellery. The fact remains that there is no mention of any jewellery articles in the said DD No. 6A dated 14.05.1998. There is no material referred in the impugned judgment by the Ld. Trial Court on the basis of which such conclusion was drawn by it, in fact the assumption on the part of the Ld. Trial Court in this regard is without any basis.
As per record, during the cross-examination of plaintiff, one document i.e. Seizure Memo of stridhan in FIR No. 379/98 P.S. Patel Nagar under Section 498A/406 IPC (Ex. PW1/D6) was produced by the defendants which was signed by the plaintiff as well as defendant no. 1. As per the document Ex. PW1/D6 all the dowry articles of the plaintiff were recovered from the possession of the defendant no. 1 from his house no. T-443, Punjabi RCA No. 01/2014 Smt. Kavita Kumari Vs. Rakesh Raman & Ors. 5/8 Basti, Baljit Nagar, Delhi. A perusal of the Seizure Memo Ex. PW1/D6 also clearly shows that the plaintiff had categorically given a note on 13.01.1999 on its second page that the jewellery articles were not received by her. The Seizure Memo Ex. PW1/D6 was produced by the defendants themselves during the cross-examination of the plaintiff. The Ld. Trial Court did not give any finding on the Seizure Memo Ex. PW1/D6 and completely lost sight of it.
It is also clear from the Ld. Trial Court record that giving of the jewellery articles to the plaintiff at the time of her marriage was not disputed at all by the defendants, rather a list of jewellery articles Ex. PW1/D5 was filed by the defendants themselves. The observation of the Ld. Trial Court with regard to the contradictions in the testimony of the plaintiff with regard to the particulars of the jewellery articles are also not sustainable, in view of uncontroverted testimony of her father Sh. Hemchand (PW2). The contradictions in the testimony of plaintiff in this regard are not of such nature which are going to the root of the case. The Ld. Trial Court clearly failed to take note of the fact that the contradictions in the testimony of the plaintiff qua the jewellery articles occurred over a period of around 14 years since her marriage in the year 1994 which can be termed as minor contradictions and should have been conveniently ignored (Reliance placed on Sukhwinder Singh Vs State of Punjab, 2014 (1) RCR (Criminal).
Further in para 14 of the impugned judgment the Ld. Trial Court observed that the original receipts Ex. PW2/A to PW2/E were not produced during trial which is also contrary to record, as the Ld. Trial Court itself had recorded during cross-examination of the plaintiff on 22.10.2008 that the aforementioned original receipts are available in the summoned record and therefore the finding of the Ld. Trial Court regarding the non-production of the RCA No. 01/2014 Smt. Kavita Kumari Vs. Rakesh Raman & Ors. 6/8 original receipts are not correct. The counsel for the appellant also pertinently relied on SCJ Plastics Ltd. Vs Creative Wares Ltd (192 (2012) Delhi Law Times 237) to highlight that the contents of plaint can also be deemed to be admitted as regards liability of the defendant by applying Order 8 Rule 5 CPC.
In view of the afore discussed facts and circumstances, I find merit in the contentions of counsel for the appellant that the findings of the Ld. Trial Court are perverse and against the record. Consequently, the appeal preferred by the appellant/plaintiff deserves to be allowed and is allowed. The impugned judgment is hereby set aside.
In view of the afore discussed facts and circumstances it is evident that as per the testimony of plaintiff, the entire Jewellery articles as detailed in para 2 of the plaint were entrusted to her in-laws on the next day of her marriage which were not returned to her to date. As per the evidence available on the Ld. Trial Court record, the defendants also admitted the aforesaid Jewellery articles to have been given to the plaintiff in marriage. The defendants also produced the list of such jewellery articles Ex. PW1/D5 during trial which goes to establish that the aforementioned jewellery articles formed part of " stridhan" of the plaintiff. In the afore discussed facts and circumstances, the preponderance of probabilities are clearly in favour of the plaintiff which lead to the inference that the defendants are in possession of the aforementioned jewellery articles and have not returned the same to the plaintiff despite specific demand. Therefore, the suit of the plaintiff is liable to be decreed in her favour.
RCA No. 01/2014 Smt. Kavita Kumari Vs. Rakesh Raman & Ors. 7/8 Accordingly, suit is decreed with costs. The defendants are directed to return the entire jewellery articles as detailed in para 2 of the plaint to the plaintiff forthwith or in the alternative, the defendants are directed to pay a sum of Rs. 2,10,000/- towards the value of the jewellery articles as claimed by the plaintiff alongwith interest to be calculated upon the aforesaid sum at the rate of 6% per annum from the date of filing of the suit till its realization.
The decree sheet be prepared.
Appeal file sent to Record Room.
TCR be returned alongwith the copy of the order.
Announced in the Open Court
Dated: 29/09/2014 (Kuldeep Narayan)
Additional District Judge-18 (Central)
Room No. 349,Tis Hazari Courts, Delhi.
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