Delhi District Court
Sanjay Kumar & Anr vs Dda & Anr on 8 September, 2017
IN THE COURT OF SH. SANJAY KUMAR,
ADDITIONAL DISTRICT JUDGE-02, WEST DISTRICT,
TIS HAZARI COURTS, DELHI.
CS NO.607704/2016
SANJAY KUMAR & ANR. ..... Plaintiffs
VERSUS
DDA & ANR. ..... Defendants
ORDER
08.09.2017
1. Vide this order, I shall dispose off an application filed by the plaintiffs under Order 7 Rule 14(3) r/w Section 151 CPC.
2. In brief, the facts are that the plaintiffs filed a suit for specific performance and in alternative for recovery for money and mandatory injunction on 13.05.2014. It is further stated that while the case is being prepared for leading the evidence, it has been transpired that the following documents are not filed on record to prove the plaintiffs' case :-
(a). Copies of the complaints dated 23.04.2010.
(b). Copy of FIR NO.683/2011 registered with P.S. Kotwali, Bulandshahar.
(c). Copy of complaint dated 23.04.2010.
(d). Copy of complaint dated 22.03.2011.
(e). Copy of complaint dated 26.05.2011.
(f). Copy of newspaper article showing news of drowning of vehicle and missing of son of plaintiff no.1.
(g). Copy of passbook of D.K. Messey.
(h). Copy of passbook of sister of plaintiff.
(i). Copy of the intimation complaint so given about missing documents.
3. It is further stated that defendant no.2 herein had lodged a false FIR No.05/12 registered with P.S. Mayapuri under Section 420/468/471 IPC and plaintiffs remained in judicial custody from 29.09.2013 to 16.08.2014 and released from the jail on 19.08.2014. The plaintiffs' counsel conducted the proceedings and plaintiffs were not contesting the case with their free and independent mind. The plaintiffs came to know that the above said documents remained to be filed. The non-filing of the documents was not intentional but due to the aforesaid facts. It is further stated that the complaints relied upon by the plaintiffs are material and pertaining to drowning of the car/ vehicle in which son of plaintiff no.1 was travelling. The news article proves the said incident where the original documents of the present case were vanished in accident and the passbook so relied reflects various payments made to the erstwhile owner of the property. The plaintiffs prayed for permission of the Court for placing the documents on record and proving the same in accordance with law.
4. Detailed reply was filed on behalf of defendants no.2 to
8. Defendant no.1 - DDA opts not to file any reply to the said application. In the reply, preliminary objections were taken that the present application is not maintainable as the plaintiffs concealed the material facts from the Court and the alleged documents were annexed with the bunch of other documents when evidence by way of affidavit of plaintiff was filed on 27.03.2017. The fact came to their knowledge when defendants no.2 to 8 had moved an application and apprised these facts which were decided by this Court on 05.06.2017. It is further stated that all the documents mentioned in the application in para 2 of sub para (a) to (i) were well within the knowledge and possession of the plaintiffs and no sufficient reason or cause was assigned by the plaintiffs in the application.
5. It is further stated that the counsel Sh. Nitin Mittal has taken this matter and appearing since long and earlier moved an application under Order 6 Rule 17 CPC on the same grounds. He must have gone through the record and gained knowledge of non- filing of the documents. The plaintiffs cannot take the ground of judicial custody because in this case, earlier counsel Sh. R.N. Jha filed all the documents and Sh. Nitin Mittal, the present counsel has been appearing for the considerable time.
6. It is further stated that defendants' defence shall be prejudiced if the documents are taken at this juncture. It is stated that now at this stage, documents cannot be given on record because issues were framed long ago on 01.12.2014 and three years have elapsed but plaintiffs are delaying the trial of the present case and the present application is moved with malalfide intention.
7. On merits, all the averments made in the application are denied and the contents mentioned in the preliminary objections are reiterated. It is further stated that plaintiffs filed the documents without the leave of the Court and misguided. It is only defendants no.2 to 8 brought the same to the knowledge of the Court. All the documents are much prior to the cause of action of the present case and are not relevant for the adjudication of the present suit. It is prayed that the application deserves to be dismissed.
8. Ld. Counsel for defendants has relied upon the judgments passed by Hon'ble High Court of Delhi in Asia Pacific Breweries vs. Superior Industries in IA NO.5990/2007 in CS (OS) 946/2002 decided on 06.03.2009 and in J.K. Kashyap vs. Rajiv Gupta & Ors. in IA Nos. 4505/2012 & 2742/2012 in CS(OS) 2156/2007 decided on 20.07.2012.
9. I have heard Sh. Nitin Mittal, Ld. Counsel for the plaintiffs and Sh. Dinesh Kumar Chawla, Ld. Counsel for defendants no.2 to 8 and perused the record.
10. As per record, the present suit was filed by the plaintiffs on 13.05.2014 for seeking the relief of specific performance and in alternative for recovery of money and mandatory injuction with regard to suit property bearing No.D-2A/62-A, Janakpuri, The suit was filed by Sh. R.M. Jha, advocate and later on, Sh. Nitin Mittal, advocate has been appearing on behalf of plaintiffs since 16.09.2014. It is pertinent to mention here that other suit filed by Smt. Krishna, defendant no.3 against the plaintiffs & Ors for possession, damages and mandatory injunction on 30.07.2012. In this connected case, Sh. Sanjay Kumar, plaintiff herein has been represented by one Sh. Puspender Sehgal on 11.09.2012 but later on, he was represented by Sh. Nitin Mittal since 15.09.2014.
11. The record establishes that Sh. Nitin Mittal, advocate has been appearing on behalf of plaintiffs in the present case since September 2014. Now, three years have been elapsed. In the connected case, he has cross-examined several witnesses of the plaintiff/ defendant in the present case. It is established that Sh. Nitin Mittal had full knowledge of complete record, circumstances and documents.
12. It is pertinent to mention here that after framing of issues at the stage of plaintiffs' evidence, Sh. Nitin Mittal earlier filed an application under Order 6 Rule 17 CPC for amendment of the plaint taking the same ground that plaintiff Sh. Sanjay Kumar was in judicial custody and earlier counsel failed to place on record all the facts. The said application was allowed vide order dated 27.11.2015. It further establishes that Sh. Nitin Mittal was well aware of all the documents which were to be filed on behalf of plaintiffs.
13. In these peculiar circumstances, in my opinion, the plaintiffs cannot take the shelter of Sh. R.M. Jha, advocate for non- filing of the documents when Sh. Nitin Mittal was well aware of all the proceedings for the last three years. In my considered opinion, I do not find any plausible reason or ground to allow the application of the plaintiffs for placing documents on record at the stage of plaintiffs' evidence. Therefore, the application is dismissed.
Announced in the open court today the 8th September, 2017.
(Sanjay Kumar) ADJ-02,West/Delhi 08.09.2017