Delhi High Court
Anita Kumari Gupta vs Ved Bhushan & Others on 23 November, 2016
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1093/2011
ANITA KUMARI GUPTA ..... Plaintiff
Through: Mr Rohit Yadav and Mr Karan Singh
Thukral, Advocates alongwith
plaintiff in person.
versus
VED BHUSHAN & OTHERS ..... Defendants
Through: Mr Sanjiv Kakra and Mr Irfan
Ahmed, Advocates for D-1, 2, 5 & 6.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 23.11.2016 VIBHU BAKHRU, J IA No. 11968/2016
1. The present application has been filed by defendant No.1(B) under Order VIII Rule 1A (3) of the Code of Civil Procedure, 1908 (hereafter 'the CPC') for taking on record the original Will dated 08.12.1988.
2. The plaintiff/non-applicant has filed the above captioned suit praying for a decree of partition in respect of the property bearing No. 24, Pusa Road, New Delhi-110005. The plaintiff claims to be 1/6th owner of the suit property.
3. It is the applicant/defendant's case that the suit property had been purchased by late Smt. Lajwanti Devi, the mother of the parties, by a duly CS(OS) 1093/2011 Page 1 of 8 registered sale deed dated 19.07.1957. Smt. Lajwanti Devi expired on 28.03.1991 and she bequeathed the suit property to her four sons by a Will dated 08.12.1988. The defendants have also produced, what they claim to be, the Original Will dated 08.12.1988. It is also contended on behalf of the defendants that the said property was mutated by DDA in the names of legatees on 01.03.1996 on the basis of the aforesaid Will.
4. In view of the aforesaid stand, this Court by an order dated 06.05.2011 had directed DDA to produce the record of the suit property including all relevant papers relating to mutation. In compliance with the said order, DDA has produced the relevant records which includes a copy of a Will dated 08.12.1988. Although, the copy of the Will produced by the DDA is similar in content to the Will produced by defendants, it is admitted that it is not the copy of the Will which has been filed by the defendants in the present proceedings.
5. The applicant now seeks to produce the original of the Will dated 08.12.1988, a copy of which is available in the records produced by DDA.
6. Mr Singh, the learned counsel for the plaintiff has opposed the present application principally on three grounds. First, he submits that the application is highly delayed; the plaintiff's evidence has already been recorded and one of the defendants' witnesses has also been examined. Secondly, he submits that the applicant has not provided any reason for not filing the said Will within time. Lastly, the Will dated 08.12.1988 on which reliance is placed by the defendants is already on record and there is no foundation in the pleadings with regard to the existence of a second Will, CS(OS) 1093/2011 Page 2 of 8 which is now sought to be produced.
7. Mr Singh also relied upon the decisions of this Court in (i) Shri Harkesh Singh and Anr. v. Shri Ved Raj, decided on 02.02.2010: (2) Dr. J.K. Jain v. Krishnaram Baldeo Investment and Finance co. Ltd: 2008 (103) DRJ 616.; and (3) Sh Hardyal Singh vs Smt. Kamlinder Kaur: 97 (2002) DLT 868.
8. Mr Kakra, the learned counsel for the applicant contended that it is common practice for parties to make copies of the original Wills and in this case, two identical Wills had been executed. He further submitted that therefore the Will sought to be produced, although identical to the one already produced, would also be relevant to adjudicate the disputes. He submitted that the defendants had not produced the said Will as it was not considered necessary and that the defendants could only propound one Will, which they had done and the same had been placed on record. He submitted that on examination of the records of the DDA, it was found that the original Will dated 08.12.1988, the copy of which was filed with DDA had not been produced. He submitted that the said original Will, which is now sought to be produced, had been produced before the DDA and the copy of the Will in the records of DDA bears a noting that the original had been seen. He emphatically contended that the only rationale for not permitting documents at a later stage was to ensure that the opposite party is not prejudiced and the documents are not fabricated. He submits that none of those said considerations apply in the present case since the copy of the document (Will) sought to be produced is already on record and that the plaintiff would not be prejudiced as she would have full opportunity to lead evidence CS(OS) 1093/2011 Page 3 of 8 in rebuttal.
9. Mr Kakra also relied on the following decision rendered by the Supreme Court in Billa Jagan Mohan Reddy and another v. Billa Sanjeeva Reddy and Others: 1994 4 SCC 659.
10. On the strength of the aforesaid decision, Mr Kakra contended that the courts have always permitted the parties to produce all the relevant documents which are relevant for adjudication of the disputes and any delay or any inconvenience caused to the other party can be compensated by payment of costs. He also volunteered that the applicant would be willing to pay such costs as may be imposed by this Court.
11. I have heard learned counsel for the parties.
12. It is clear that the original of the Will dated 08.12.1988, which is now sought to be produced by the applicant is relevant for adjudicating the disputes in the present suit. This is also not seriously disputed by the learned counsel for the plaintiff.
13. The plaintiff is also justified in contending that applicant has filed the present application at a much belated stage. It is also apparent that the present application is occasioned because the cross-examination of defendants' witness had brought out that the copy of the Will in the records produced by DDA was different from the original produced by the defendants and that the applicant is now seeking to produce the Will only to overcome a possible adverse inference from the evidence of defendants' first witness.
CS(OS) 1093/2011 Page 4 of 814. There can be no dispute as to the principles laid down in the judgments cited by Mr Singh. Sub rule (1) of Rule 1A of Order VIII CPC mandates the defendant to produce all documents that are relied upon by the defendant in evidence at the time of filing the Written Statement. Further in terms of sub rule (3) of Rule 1A, the defendant is not permitted to produce any such document which has not been produced at the time of filing the Written Statement without the leave of court. There is also no caveat that the discretion to permit a defendant to produce documents at a subsequent stage has to be exercised judicially. In Hardyal Singh v. Smt Kamlinder Kaur (supra), the Court had pointed out that the rule has been devised in order to eliminate the possibility of fabrication and forging of evidence by a party taking the opponent by surprise.
15. In Shri Harkesh Singh & Anr. v. Shri Ved Raj (supra), this Court had rejected the application for production of documents which were not produced at the relevant time due to inadvertence. The Court held that inadvertence cannot be a ground for allowing application for production of documents at a later stage.
16. In the present application, the applicant has stated that while inspecting the file, it was discovered that the placement of signatures of the testator and the witness in the copy of the Will in the record of DDA and the original Will filed by the defendants was slightly at variance. And, on inquiry by the counsel, the applicant had informed that two copies of the Will dated 08.12.1988 were made and both the documents were signed by the testator and the witness on the same date.
CS(OS) 1093/2011 Page 5 of 817. Thus, the only reason provided by the applicant for producing the Will at a later stage is the discovery of discrepancy in the placement of the signatures. It is also understandable that the applicant did not produce the said Will since the defendants were propounding a Will which, it is stated is identical to the Will now sought to be produced.
18. There is no denying the fact that the defendants ought to have produced the original Will at the relevant time. However, it is obvious that the applicant did not consider it necessary to do as the text of the Will produced is identical to the one that is sought to be produced now. The only question to be addressed is whether the defendants should be penalized for not doing so. The rule requiring a party to produce the documents along with its pleadings and before issues are framed is essentially a rule of procedure to ensure that no party is prejudiced. The said rule is not meant to be a punitive measure for punishing parties for failing to realise the relevance or importance of certain documents.
19. In M/s Asman Investments Ltd v. K.L. Suneja: AIR 1998 Del 204, this Court had observed as under:-
"No doubt gross negligence cannot be a good cause. One cannot put premium on it. But there is a line of distinction, fine though, in gross negligence and mere inadvertence or oversight which may be human error caused by lack of professional advice or directive or party's lack of knowledge of the urgency of a document being filed early or oblivion of consequences of not doing so. Where the delay in filing is not with design or motivated, it may be inadvertent and not gross negligence."CS(OS) 1093/2011 Page 6 of 8
20. Although, it is clear that in the present case, it cannot be held that the defendants have been grossly negligent. Not understanding the relevance of a document cannot be equated with being grossly negligent. It is also well settled that the court can always permit production of documents at any stage if it considers the same necessary for adjudication of the disputes between the parties. In Billa Jagan Mohan Reddy and Another (supra), the Supreme Court had explained as under:-
".....It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27 CPC the appellate court would receive the documents and consider their effect thereof. .............................."
21. Considering that the Will in question would be relevant for adjudicating the disputes between the parties, I consider that the ends of justice will be met if the application is allowed and the applicant is permitted to produce the same, albeit, on payment of cost as volunteered by Mr Kakra. Accordingly, the application is allowed subject to payment of a cost of `50,000/-. The cost shall be paid within a period of two weeks from today. It is further clarified that the plaintiff would have full right to lead evidence in rebuttal.
22. It is also noted that the applicant has not sought to introduce any pleadings to lay any foundation for the Will now sought to be produced. Mr. Kakra had also stated that the applicant did not wish to amend any pleadings. In view of the above and in view of Mr Singh's objection CS(OS) 1093/2011 Page 7 of 8 regarding lack of pleadings, it is necessary to observe that the plaintiff would be entitled to advance contentions regarding the same at the time of final hearing and the effect of lack of pleadings shall be considered at the said stage, uninfluenced by any observations made in this order.
23. It is further clarified that - as submitted by Mr. Kakra - the defendants' witness already examined shall not be re-examined by the defendants. It is open for the plaintiff to recall the said witness if considered necessary. Further the plaintiff would also be entitled to lead evidence in rebuttal.
24. The application is allowed with the aforesaid observations and subject to payment of costs within a period of two weeks.
CS(OS) 1093/2011
25. List before Court on 16.02.2017.
VIBHU BAKHRU, J NOVEMBER 23, 2016 pkv CS(OS) 1093/2011 Page 8 of 8