Delhi High Court
Ashish Tewari vs G.P.Tewari And Anr. on 26 September, 2022
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
NEUTRAL CITATION NO: 2022/DHC/004103
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 26th September, 2022
+ CS(OS) 1558/2003
ASHISH TEWARI .....PLAINTIFF
Through: Mr. Preetjit Singh, Mohd. Anislk
Rehman, Advocates
versus
G.P.TEWARI AND ANR. ..... DEFENDANT
Through: Mr. Sanjeev Mahajan, Advocate for
D-2
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
NEENA BANSAL KRISHNA, J. (ORAL)
I.A. 16735/2019
1. An application under Section 151 of CPC has been filed on behalf of the plaintiff.
2. It is submitted in the application that another suit for permanent injunction bearing Suit No. 616/1989 titled as "Ashish Tewari Vs. Gyanender Prasad Tewari and others." was summoned from the Court of the then sub-Judge, Sh, D.S. Pawery, Tiz Hazari Court, Delhi but the same has not been annexed with this file.
3. A request is made that the Registry be directed to trace the suit bearing no. 616/1998 and the same be tagged along with this suit.
4. Learned counsel for the defendant submits that the file pertaining to suit bearing no. 616/1989 was summoned twice and was also directed to be sent back to the learned trial Court and it is not known if actually the said file was retained in this Court.
CS(OS) 1558/2003 Page 1 of 7This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004103
5. Learned counsel for the plaintiff is relying upon the pleadings pertaining to suit no 616/1989. The plaintiff is at liberty to obtain the certified copy of the pleadings or to do the needful.
6. No further directions are required to be made in this regard. In case the file is not traceable, appropriate steps may be taken by the plaintiff.
7. The application is accordingly disposed of.
I.A. 1444/20201. Application has been filed on behalf of the plaintiff under Order XIV Rule 5 read with Section 151 of CPC.
2. It is submitted in the application that the defendant nos. 1 and 2 in their amended Written Statement had pleaded about the Will dated 13.02.1980 as being the last and final Will of late Sh. Jagannath Prasad Tewari. They had also pleaded about a Relinquishment Deed dated 11.12.1989 of late Smt. Rani Tewari.
3. The question of framing of an additional issues in relation to Relinquishment Deed came up for consideration before this Court which vide Order dated 26.07.2016 while disposing of the I.A. No. 17088/ 2015 (filed by the plaintiff under Order VI Rule 16 of CPC) had clearly observed the issues that were framed way back on 20.10.1994 and an issue in regard to entitlement of the plaintiff to 1/4th share in the property no. 325, Deepali, Peetampura, Delhi has already been framed. Since the evidence had already been recorded, no further interference was called for though the plaintiff was given liberty to lead any additional evidence in view thereof, for which the plaintiff may apply. Both the parties had been allowed to lead the evidence including on the new pleas taken by the defendants.
4. It is conceded by both the parties that evidence stands concluded on CS(OS) 1558/2003 Page 2 of 7 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004103 behalf of both the parties and no further evidence is required to be led by them either in respect of the Will or the Relinquishment Deed. But since these are specific pleas taken in the written statement, issues are required to be specifically framed on these two aspects.
5. Considering the specific defense taken by the defendant nos. 1 and 2 in their respective e written statements, even though the entire evidence on these aspects has already been concluded but for effective adjudication of the controversy raised in the present suit and in the interest of the justice, two additional issues are hereby framed as issue nos. 4(a) and 4(b) 4(a) Whether late Sh. Jagannath Prasad Tewari had duly executed registered last and valid Will dated 13.02.2018 as alleged, if so, its affects? OPD1and 2 4(b) Whether late Smt. Rani Tewari had duly executed and registered a relinquishment deed dated 11.12.1989 as alleged, if so, its affects? OPD1and 2
6. The additional issues are accordingly framed in addition to the issues originally framed on 20.10.1994 and 26.07.2016. However, evidence on these two issues already stand recorded, as admitted by the parties and no further evidence is required to be led as submitted by both the parties.
7. The application is accordingly disposed of.
I.A. 16736/20191. An application under Section 151 of CPC has been filed on behalf of the plaintiff for leading the rebuttal evidence.
2. It is submitted in the application that suit for partition and rendition of account has been filed by the plaintiff against the defendants. The issues were framed on 20.10.1994 and thereafter the evidence was lead by the CS(OS) 1558/2003 Page 3 of 7 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004103 parties. The Court on 26.07.2016 observed that the issues have already been framed and the evidence was being recorded. It was observed that the defendants have raised new pleas in the written statements to the amended plaint and the Court opined that the parties should be allowed to lead evidence including on the new pleas taken by the defendant. It was categorically observed that if the plaintiffs feels that it is required to lead any additional evidence in view thereof, it shall be open to the plaintiff to apply accordingly. Pertinently, the new pleas had been raised by the defendants including those in respect of the Relinquishment Deed dated 11.12.1989 executed by defendant no. 3, Smt. Rani Tewari(deceased) in favour of defendant nos. 1 and 2 which was revealed by the defendants for the first time in the year 2015 when they filed their written statement even thought the suit is pending since 1992.
3. It is asserted that the Court also amended issue no. 4 as previously framed to imply that the share of the plaintiff in amended plaint be 1/3 rd and not by 1/4th as was earlier claimed. Issue no. 4 was accordingly directed to be amended.
4. The Court further gave liberty to the parties to file the additional documents for which admission denial of documents was to be done before the learned Joint Registrar. It was also noted that some additional witnesses may be required to be examined. The defendant nos. 1 and 2 in support of their case, had examined DW-10 and DW-11. DW-11 to prove the relinquishment deed allegedly signed by Smt. Rani Tiwari. To controvert that the signatures on Relinquishment Deed were of Smt. Rani Tiwari, the DW-11 was confronted with the registered AD and the money order receipt having the admitted and genuine signatures of Smt. Rani Tewari but he has CS(OS) 1558/2003 Page 4 of 7 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004103 denied the same. It has therefore become imperative for the plaintiff to adduce rebuttal evidence to prove these documents to prove the signatures of Smt. Rani Tewari. It is submitted that PW-2, Smt. Asha Tewari, Mother of the plaintiff herein may be allowed to be further examined in rebuttal evidence, in order to prove the relevant document in accordance with the law.
5. The application is contested by the legal heirs of the defendant no. 1 who have submitted that the first round of evidence was recorded before the learned District Judge, the second round of the evidence took place before this Court between 2003 and 2014. Thereafter, in the third round, after the amendment of the plaint vide Order dated 05.05.2015, the evidence of the parties were recorded between 2016 and 2019. The plaintiff is now trying to delay the proceedings as can be confirmed from the fact that the cross- examination of DW-11 by the plaintiff continued for the several days even though the same was objected to by the counsel for the defendant.
6. It is asserted that under the garb of this application, plaintiff intends to fill the lacunae in the case. On merits, the contents of the application are denied.
7. Submissions heard.
8. The perusal of the records shows that by way of an amendment in the year 2015, the plaintiff had amended the plaint. In response thereto, the defendant nos. 1 and 2 had for the first time mentioned about the Relinquishment Deed dated 11.12.1989 executed by late Smt. Rani Tewari. The Court considering that it was a case filed in 1992, gave a liberty to the parties to adduce evidence in respect of the amended pleas taken in the respective pleadings and also to prove the additional documents. The CS(OS) 1558/2003 Page 5 of 7 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004103 defendant nos. 1 and 2 had specifically taken a plea of Relinquishment Deed dated 11.12.1989 and had also lead evidence to prove the same by examining DW-10 and DW-11 respectively. DW-11, Sh. Krishan Singh was confronted in his cross-examination with two documents marked as X and Y which have the admitted signatures of Smt. Rani Tewari but he denied the signatures of Smt. Rani Tewari. Therefore, the permission is sought to adduce the evidence by way of rebuttal by examining PW-2, Ms. Aasha Tewari to prove these documents bearing the original signatures of late Smt. Rani Tiwari.
9. On the application bearing no. I.A. 1444/2020 formal issues in respect of Relinquishment Deed has been framed with the onus placed on the defendant. The plaintiff in rebuttal has a right to rebut the genuineness of the signatures on the Relinquishment Deed propounded on behalf of the defendant no. 2.
10. In Subhash Chander Vs. Bhagwan Yadav, 2010 1 AD (Del) 96, it was observed that when a document is put to the witness during the cross- examination who fails to admit it, then the party putting the document must be entitled to prove the same in its own evidence or if the evidence of the party has already been concluded, then the plaintiff must have a right to prove the same by way of rebuttal evidence. This is irrespective of whether the right has been reserved by the plaintiff to lead rebuttal evidence.
11. Similar observations were made in Prem Sagar Gupta through LRs Vs. Kamlesh Kumari and Anr. 2004 AIR(Del) 136 wherein it was observed that rejection of a right of a person to produce evidence in rebuttal on account of delayed application is negation of the right itself. To deny this right on its belated exercise is contrary to legal right but also amounts to CS(OS) 1558/2003 Page 6 of 7 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004103 defeating of the interest of justice.
12. In Wazirpur small industries Association Vs. Union of India and Ors. 2010 4 AD (DeL) 262 it was held that it is only after the evidence of the defendant is recorded that the plaintiff can decide whether there is a necessity of leading the evidence in rebuttal. Therefore, merely because the right to lead evidence in rebuttal has not been reserved would not be a ground to deny this right of leading rebuttal evidence to the plaintiff.
13. In Maharajis wahi vs. Renuka wahi 2016 Law Suit (Del) 5610 the aforementioned judgements were referred to and it was held that under Order XVIII Rule 3, no restriction has been placed on the party to lead evidence first. When the circumstances so demand, petitioner should be allowed to lead rebuttal evidence or would suffer irreparable loss.
14. From the two documents marked as X and Y, the plaintiff intends to prove that the signatures on the Relinquishment Deed relied upon by the defendants, do not bear genuine signature of the Smt. Rani Tewari. It is a significant piece of evidence and the plaintiff is allowed to lead evidence in this regard by examining Ms. Asha Tewari in rebuttal. However, only one opportunity shall be granted to the plaintiff to conclude the evidence in rebuttal considering that it is a case of 1992.
15. The application is accordingly allowed.
CS(OS) 1558/2003,CRL. M.A. 13158/2013, I.A. 11962/2016 & I.A.11963/2016
1. List before the learned Joint Registrar on 30.11.2022 for recording of rebuttal evidence of the plaintiff.
(NEENA BANSAL KRISHNA) JUDGE SEPTEMBER 26, 2022/PA CS(OS) 1558/2003 Page 7 of 7 This is a digitally signed Judgement.