Delhi District Court
Sh. Satya Prakash & Ors. vs Smt. Natho Devi on 29 April, 2017
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
M61282/2016
Sh. Satya Prakash & Ors. Versus Smt. Natho Devi
O R D E R
1. By this order I shall dispose of an application under Order
XLI Rule 27 read with Section 151 of The Code of Civil Procedure, 1908
(in short CPC) for bringing on record additional evidence, dated
11.04.2017, filed by applicant/appellant no1 Sh. Satya Prakash.
2. I have heard Ld. Counsels for the parties and have perused
the record including the application under consideration and its reply.
3. Applicant/appellant no1 seeks to bring on record as
additional evidence a document viz., Court Notice under Section 107/111
of The Code of Criminal Procedure, 1973 (in short Cr.P.C), dated
M61282/2016
Sh. Satya Prakash & Ors. Vs. Smt. Natho Devi Page 1 of 11
08.04.1987, issued by Sh. T.S. Bhalla, Special Executive Magistrate,
South District, New Delhi. It is the case of applicant/appellant no1 that
he came across aforesaid document few days back, while carrying out
substantial repair works at his premises i.e., Plot No. 310A, Chunna
Bhati, Mathura Road, Badarpur, New Delhi.
4. It has been argued by applicant/appellant no1 Counsel that
from the aforesaid additional document it is evident of existence of old
dispute amongst appellants and respondents pertaining to property in
question. Ld. Counsel for applicant/appellant no1 has relied upon :
1)Billa Jagan Mohan Reddy & Anr. Vs. Billa Sanjeeva Reddy & Ors., (1994) 4 SCC 659;
2)Nishant Hannan Vs. South Delhi Municipal Corporation, 2014 SCC Online Del 4053;
3)Tola Ram & Sons Vs. State Bank of India, 2014 SCC Online Del 2172;
4)T. Anjanappa & Ors. Vs. Somalingappa & Anr.
(2006) 7 SCC 570;
5)AEG Carapiet Vs. A.Y. Derderian, AIR 1961 M61282/2016 Sh. Satya Prakash & Ors. Vs. Smt. Natho Devi Page 2 of 11 Calcutta 359 (V 48 C 74);
6)Mst. Qaiser Jahan Begum Vs. Messers Ramzan Karim & Sons, 1998 (46) DRJ 7.
5. Answering respondents in reply opposed the application tooth and nail submitting the document sought to be placed on record has absolutely no relevance to the adjudication to the instant appeal. The document is a notice from SEM under Section 107/111 Cr. P.C. and the contents of the same cannot be read in favour of the appellants as they do not decide the issue of ownership of the suit premises or the right of possession thereof. Also was averred that in the written statement in Trial Court, the appellants/defendants pleaded that their father contributed towards the purchase of the suit property, however, admittedly they failed to place on record any proof to substantiate the same. In crossexamination of date 22.03.2001, appellant no1 admitted that he cannot say anything about the sale transaction qua the property in question as the same took place before his birth and his father never showed or gave any document with respect to the said contribution made by him. So, no right qua suit property was proved by them in their favour. Also has been submitted that the notices sought to be placed on M61282/2016 Sh. Satya Prakash & Ors. Vs. Smt. Natho Devi Page 3 of 11 record do not otherwise pertain to the suit property, which is property No. 310 as is evident from the contents of the notice which bear the property no. 310 A. Further said notice had not been issued to the respondents herein, who established their ownership on the basis of registered Will in their favour executed by the actual admitted owner of the suit property Chelu Ram. No sufficient cause had been shown for not placing on record the document in question earlier as the same pertains to year 1987 which even otherwise has no bearing on the decision of this appeal and does not decide the rights of the parties nor is pertinent to any issue framed in the suit. Instant application is a tool of dilatory tactics, whereas, the appeal is pending for about 11 years and when the High Court of Delhi has made adjudication of the appeal time bound, the appellants are enjoying the stay order while sitting in possession of suit property, appellant no. 1 has preferred this application.
6. Order XLI Rule 27 CPC reads as under : "27. Production of additional evidence in Appellate Court. - (1) The parties to an appeal shall not be entitled to produce additional evidence, M61282/2016 Sh. Satya Prakash & Ors. Vs. Smt. Natho Devi Page 4 of 11 whether oral or documentary, in the Appellate Court. But if -
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
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7. It is not the case of the applicant/appellant that the Trial Court ever refused to admit evidence which ought to have been admitted. Affidavit of applicant/appellant no1 annexed with the application bears present age of applicant to be 53 years. As DW1 before the Trial Court, applicant/appellant no1 interalia testified that his date of birth was 08.07.1964 and that his father died in the year 1984. Suit for possession, recovery of damages/mesne profits was filed on 30.09.2000. Applicant/defendant no1 filed the written statement on 14.09.2001 when he was of age of 37 years. The plea in defence in written statement had been that the defendants including appellant no1/defendants were in possession of the suit property viz., the portion shown in red colour in the site plan in property bearing no. 310, Chuna Bhatti, Mathura Road, Badarpur, New Delhi, in their own rights, because this property was purchased in the name of late Sh. Chellu Ram, whereas, father of defendants/appellants contributed money for the purchase of the property. Later in para9 of reply on merits in said written statement following is the additional contention of the applicant/appellant no1/defendant no1 that : M61282/2016 Sh. Satya Prakash & Ors. Vs. Smt. Natho Devi Page 6 of 11 "The defendants have been living in the suit property as owners in their own rights and their possession at the most can be termed as adverse or hostile and that too after the order passed by the probate court has been upheld by the High Court. Till then the order is a nullity because it has been passed by a court which had no jurisdiction ."
Alongwith the written statement no documents were filed by the appellants/defendants before the Trial Court.
8. Written statement of appellants/defendants contains no averment of the fact of any proceedings having taken place under ChapterVIII of The Code of Criminal Procedure, 1973 on the subject of security for keeping the peace and for good behaviour either interse parties to the lis or their predecessors or solely own appellants, at any point of time prior to filing of the written statement, on the aspect of the dispute over ownership of the suit property viz., the portion shown in red colour in the site plan in property bearing no. 310, Chuna Bhatti, Mathura Road, Badarpur, New Delhi. Written statement also nowhere describes the suit property to be bearing no. 310A but instead there is no dispute to the number of suit property 310, described by plaintiffs in plaint.
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9. Ld. Counsel for respondent relied upon Bharat Bhushan Jain & Anr. Vs. UOI & Ors., RSA54/2002, decided on 14.07.2014 by Hon'ble Mr. Justice Valmiki J. Mehta, wherein, it was interalia held that in law, alternative and inconsistent stands can be raised but mutually destructive stands cannot be taken up in the pleadings. This is for the reason that pleadings have to be substantiated by evidence and once the appellants/plaintiffs take up plea of adverse possession and depose to the same, they are destroyed by their own evidence/deposition/testimonies of their case of ownership by purchase under the sale deed. It had been held that this aspect itself was sufficient to dismiss the case of the plaintiffs on the ground of ownership by purchase because once a plea of adverse possession is pleaded and then sought to be proved, the depositions to substantiate the plea of adverse possession destroys and proves false the case of ownership by purchase of suit plot.
10. In the case of Billa Jagan Mohan Reddy & Anr. (supra), when the matter was decided on 28.01.1994, Rule 1 of Order XIII was not amended. Before amendment by Section 23 of Act 46 of 1999, as per Rule 1 of Order XIII, the relied upon original documents were to be M61282/2016 Sh. Satya Prakash & Ors. Vs. Smt. Natho Devi Page 8 of 11 produced by or before the settlement of issues. But, later thereto after amendment, only those documents in original were to be received whose copies were filed alongwith the plaint or written statement. Therein, the application was filed at the stage of arguments before the Trial Court to file certified copies of revenue records which were not in possession or custody of appellants but were obtained later from Revenue Authority. The said documents were found to be relevant to decide the real issue in the controversy. Said case of Billa Jagan Mohan Reddy & Anr. (supra), had been relied upon in the case of Nishant Hannan (supra) and Tola Ram & Sons (supra) for taking on record the unimpeachable documents as detailed therein, belatedly before the Trial Court. In the case of T. Anjanappa & Ors. (supra), the concept of adverse possession has been appreciated. In the case of AEG Carapiet (supra), interalia the facet of a party declining to avail opportunity to put essential and material case in crossexamination of the opponent has been dwelled. Similarly, in the case of Mst. Qaiser Jahan Begum (supra), interalia the established rule of evidence that a party should put to each of his opponent's witnesses so much of his case as concerns that particular witness, has been deliberated upon.
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11. Application for now bringing on record the additional evidence viz. the document, the notice under Section 107/111 of The Code of Criminal Procedure, 1973 of date 08.04.1987, issued by Special Executive Magistrate is simply on the premise that the applicant/appellant no1 had come across the same few days back from 11.04.2017, while carrying out substantial repair works. Neither it was pleaded in the written statement by appellants/defendants that any such proceedings ever took place before SEM in year 1987 nor afore elicited additional document sought to be placed on record was placed before the Trial Court during Trial at any stage of the matter nor the said document is with respect to the portion of the suit property bearing no. 310, Chuna Bhatti, Mathura Road, Badarpur, New Delhi. It is the version of appellants/defendants as elicited from para9 of reply on merits in written statement that defendants were living in the suit property as owners in their own rights and their possession at the most can be termed as adverse or hostile and too that after the order passed by the Probate Court is upheld by the High Court. In the case of N. Kamalam (dead) & Anr. Vs. Ayyasswamy & Anr., AIR 2001 SC 2802, it has been interalia held by the Apex Court that the time lag in the matter for production of additional M61282/2016 Sh. Satya Prakash & Ors. Vs. Smt. Natho Devi Page 10 of 11 evidence has to be seen and when it is enormous then the Court has to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence. The lapse and failure on the part of the applicant/appellant no1/defendant no1 to bring on record the document in question alongwith the written statement or any time later thereto, even during the course of evidence or later with permission of Court; brings into fore gross negligence on the part of applicant/appellant no1 in production of the document in question at the opportune time before the Trial Court or even mentioning the same in the pleadings in the written statement before the Trial Court. This disentitles applicant/appellant no1 for production in additional evidence, the document(s) sought to be placed on record. The application under consideration being devoid of merits, being not maintainable is hereby dismissed. No order as to costs.
Announced in open Court (GURVINDER PAL SINGH) on 29th Day of April, 2017. Additional District Judge01 (Central) Tis Hazari Courts, Delhi.
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