Punjab-Haryana High Court
Arti Nobbs vs Raj Kumar Arora And Ors on 15 September, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
RA No.118-CII of 2012 (O&M) in
CR No.2872 of 2012
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RA No.118-CII of 2012 (O&M) in
CR No.2872 of 2012
Date of Decision: 15.09.2014
Arti Nobbs
..... Petitioner
Versus
Raj Kumar Arora alias
Madhu Sudhan Arora and others ..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. A.P.S. Sandhu, Advocate,
for the applicant/petitioner.
Mr. S.S. Panwar, Advocate,
for respondent Nos.1 and 3.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
Arti Nobbs filed a suit against her brother Raj Kumar Arora alias Madhu Sudhan Arora and her sisters arrayed as defendant Nos.2 and 3 i.e. Rita Arora alias Rita Jain and Anuradha. The suit was brought in Amritsar. All the siblings live in the United Kingdom. The suit is for declaration to the effect that Arti Nobbs is owner in possession of the property in dispute described in the plaint measuring 2186.42 sq. yds. situated at Batala Road, Amritsar. A part of this land is occupied by a petrol pump known by trade name "Auto Oils" and she asserts in the plaint that she is owner of both the land and the petrol pump. The consequential relief claimed is for permanent MANJU 2014.09.29 10:25 I attest to the accuracy and authenticity of this document Chandigarh RA No.118-CII of 2012 (O&M) in CR No.2872 of 2012 -2- injunction restraining the brothers and sisters from interfering in her possession and in business carried on by her so as not to interfere in the peaceful running of the said business. One of her sisters, Rita Arora alias Rita Jain - defendant No.2 was proceeded against ex parte and has remained in that status in limbo. The suit was filed in 2005. Arti Nobbs claims suit property on the basis of a registered Will dated February 03, 2004 left behind by her father after making her the sole beneficiary. It is alleged that the defendants resorted to dilatory tactics for one reason or the other and finally a joint written statement was filed by defendant Nos.1 and 3 on June 07, 2007 together with an application under Section 11 of the CPC and under Order 7 Rule 11 of the Code. The contesting defendants also filed a counter-claim seeking declaration with respect to the property in dispute, for rendition of accounts and permanent injunction against Arti Nobbs as also claimed damages to the tune of Rs.50 lacs from the plaintiff. The court fee payable was not affixed with the counter claim and a request was made for grant of time to make good the deficiency which was granted. It may be mentioned that instead of affixing the court fee on damages claimed, the contesting defendants moved an application abandoning their claim for damages in the counter claim due to certain adverse orders passed calling upon them to make good the deficient court fee. That application was dismissed by the learned trial Court on May 13, 2010 which brought defendant No.1 - Raj Kumar Arora to file Civil Revision No.4538 of 2010 before this Court which was allowed by setting aside the order dated May 13, 2010. The defendant-petitioner was permitted to withdraw his claim for damages in the counter claim.
MANJU2014.09.29 10:25 I attest to the accuracy and authenticity of this document Chandigarh RA No.118-CII of 2012 (O&M) in CR No.2872 of 2012 -3- The long and short of story is that the contesting defendants filed a counter claim/cross suit on June 07, 2007 and on August 22, 2007 Arti Nobbs moved an application under Order 7 Rule 14, and under Order 11 Rule 4 and 15 of the Code etc. that she was unable to file a written statement to the counter claim in absence of non-access to certain documents lying in the possession of the contesting defendants and relied upon by the defendants which are required to be placed on record for her to inspect before she is able to file a reply. These documents are narrated as follows in the application:-
"i) Entire record of Police Complaints by Smt. Sneh lata Aurora.
ii) Record of concerned police Stations.
iii)Record of Registrar of Births and Deaths in England and India.
iv) Record of Child Custody case No.99 CP _____ decided on 21.12.1999 by London Courts.
v) Record of partition suit No.448/2003 between Sh. Raj Kumar Arora and another Versus Sneh Lata Aurora and others, decided on 28.03.2005 by the court of sh. Baljinder Singh, Civil Judge (Sr. Div.)
vi) Record of the Criminal Case No.175/21.10.05 pending before the Court of Judicial Magistrate, First Class, Amritsar.
vii)Record and proof of construction of suit property."
The application was contested by filing a reply in which it was prayed that the application be dismissed with heavy and exemplary costs since it has been filed with an oblique motive to delay the proceedings of the suit and cross-suit on false, frivolous, baseless and misconceived pleas and a large number of frivolous applications moved one after the other including the present one only to harass the answering defendants. It was urged that the record which was asked for was either part of the judicial record or were public documents easily accessible to the partiesMANJU or to the 2014.09.29 10:25 I attest to the accuracy and authenticity of this document Chandigarh RA No.118-CII of 2012 (O&M) in CR No.2872 of 2012 -4- public, as the case may be, but no effort was made to take recourse to legal procedural remedies to obtain copies of the aforesaid record or to inspect the same which she was free to. It is averred that the plaintiff obtained an ex parte order against the defendants/counter claimants which has been set aside. It is stated that the plaintiff has failed to understand the difference between a list of documents and a list of reliance which are two different terms and concepts having different connotation in the Code. The list of reliance is the record of documents upon which the parties rely upon to prove its case on evidence, which is totally separate and independent of the documents which have been filed by the party with the suit. Moreover, a party is not debarred from producing documents at the time of evidence and during the cross-examination of the witnesses of opposite party produced or to refresh the memory of the witnesses to the facts in issue or other facts which are relevant and material to the prove facts in issue to establish a claim or counter claim. The reply to plaintiff's application for production of record was filed on September 18, 2007, after which the matter lingered on. Another application of the same kind was moved on November 24, 2009 by Arti Nobbs on being made aware of the legal position obtaining. The plaintiff filed this application again calling upon the counter claimants to place them on record to enable her to file written statement. It was pointed out that she had already filed an application under Order 7 Rule 10 and Order 11 CPC read with Section 151 CPC for rejection of the counter claim being under-valued with respect to relief of declaration regarding challenge of a release deed dated August 26, 1996 in favour of the contesting defendants/counter claimants. A prayer was then made by the plaintiff that MANJU 2014.09.29 10:25 I attest to the accuracy and authenticity of this document Chandigarh RA No.118-CII of 2012 (O&M) in CR No.2872 of 2012 -5- all the pending applications filed by her should be decided before she is called upon to file a reply to the counter claim. The trial Court has noticed that the plaintiff has filed a replication to the written statement filed in her suit but reply to the counter claim has not been filed. The trial Court by the impugned order dated March 09, 2012 struck off the defence of the plaintiff Arti Nobbs.
Aggrieved by the order, Arti Nobbs approached this Court by way of CR No.2872 of 2012 in which both parties were heard after notice. This Court by order dated July 27, 2012 found no ground to interfere and dismissed the petition. Two reasons were ascribed in making the order. The first was on the submission of the respondents that the documents sought to be produced by the defendants-respondents actually relate to the plaintiff. The second reason was that the suit was lingering on for the last four years and even the reply to the counter claim had not been filed. This Court held that there is no provision of law that if the defendant has not placed on record any document over which he places reliance, then reply to the counter claim could not be filed. The Court guarded that in case of failure to produce certain documents in possession of parties, the Court would proceed to draw adverse inference against him or the documents, if any, could well be produced at a later stage with the permission of the Court.
Aggrieved by the order of this Court, Arti Nobbs filed a review application No.118-CII of 2012 for review of the order. In the review application it was argued by Arti Nobbs that the trial Court did not give even a single effective opportunity to her to file written statement to the counter claim after the acceptance of the application under Order 7 Rules 10 MANJU 2014.09.29 10:25 I attest to the accuracy and authenticity of this document Chandigarh RA No.118-CII of 2012 (O&M) in CR No.2872 of 2012 -6- & 11 CPC. Moreover, the application filed under Order 7 Rule 14 is still not decided could not have made the plaintiff accountable to file a written statement without orders on the interlocutory applications. In short, she prayed that she may be allowed to place on record written statement to the counter claim. This was as though to say that a lesson had been learnt. She prayed that the basic order dated March 09, 2012 striking off a defence deserves to be recalled.
This Court issued notice to the respondents through their counsel for December 12, 2012 by the order dated August 30, 2012 and that is how the matter has come before me. The contesting respondent Nos.1 and 3 have filed a reply to the review application filed under Section 114 CPC annexing a large number of documents. The broad defence of the contesting defendants is that Arti Nobbs has purposely denied and disputed the existence of a subsequent Will dated March 23, 2005 as a forged document. There is also the presence of probate case No.11419 of 2006 pending between the parties with respect to testamentary Wills. There also appear to be numerous criminal complaints filed by one of the other party over many years related to the property in dispute.
I have heard the learned counsel for the parties at length on the question whether Arti Nobbs should be permitted to file written statement to the counter claim or to deny her the right by examining her conduct in the proceedings pending for years without any effective milestone crossed in the life of the suit and the counter claim.
Learned counsel for the petitioner has anchored his case in order to justify non-filing of the written statement to the counter claim on the MANJU 2014.09.29 10:25 I attest to the accuracy and authenticity of this document Chandigarh RA No.118-CII of 2012 (O&M) in CR No.2872 of 2012 -7- ground that the documents sought by plaintiff Arti Nobbs as quoted supra are essential to be looked into before her written statement is filed and absence of which she has been unable to make not just a written statement but an effective reply. I find from a cursory look at those listed documents in the application that those documents are not ex facie sufficient or necessary to hold up the filing of the written statement and the request is a lame excuse to prolong the trial without just cause of legal justification. Learned counsel further submits that in the order under review there has occurred a mistake of fact that these documents actually relate to the plaintiff. To that extent, he may be right but the question still remains whether that is sufficient reason not to file the written statement to the counter claim within the period prescribed by the Code of Civil Procedure, 1908. Numerous allegations and counter allegations have been levelled by either side at the hearing of this case which are not necessary to go into at an interlocutory stage of the proceeding.
Mr. Panwar appearing for the respondents has vehemently argued that this is not a case calling for interference with the order of the court a quo striking off the defence of Arti Nobbs looking to her conduct in the prosecution of her suit and defence to the cross suit. It appears that much bad waters have flown under the bridge in an acrimonious dispute of rights in the suit property left behind by the father of both the parties. However, in order to do substantial justice and to correct the scales in a balance it would serve the ends of justice more wholesomly if both the warring parties are put on an even keel in pursuit of the suit and the counter claim, and toward which peaceful end this Court would interfere a tad reluctantly in the matter MANJU 2014.09.29 10:25 I attest to the accuracy and authenticity of this document Chandigarh RA No.118-CII of 2012 (O&M) in CR No.2872 of 2012 -8- keeping uppermost in view that the parties are after all Sister vs. Brother & Sister and all the disputes between them should be allowed to be decided fully and finally on merits through an adjudication. The fact that the plaintiff and the contesting defendants live in England and are assumed to be persons of means then keeping in view the conduct of the plaintiff Arti Nobbs in soft peddling the case for far too long, I would accept this petition and set aside the impugned order passed by the learned trial court on March 09, 2012 by reviewing the order of this Court dated July 27, 2012 and would grant leave of the Court to the petitioner to file her written statement to the counter claim within one month from the date of receipt of certified copy of this order without insisting on production of the listed documents in the application but at the same time the permission would be subject to payment of costs assessed at Rs.2 lacs by Arti Nobbs to defendant Nos.1 and 3 in half share each in order to compensate them adequately for their sufferance and for the harassment meted out and the expenses they may have incurred defending a frivolous application.
Accordingly, the review application is accepted on the above terms and the order passed by the learned trial Court is set aside not for the reason that it is bad in law or in fact and to the contrary it is eminently an order which could well have been passed in exercise of judicial discretion vested in it; but at the same time I would hesitate to uphold it because of the weight placed on the shoulders of this Court's to visit the least possible legal injury to a party in a lis and endevour to grant relief ex debito justatiae when a cause appears to demand in exercise of its sometimes ameliorative and benign jurisdiction conferred by Article 227 of the Constitution of India MANJU 2014.09.29 10:25 I attest to the accuracy and authenticity of this document Chandigarh RA No.118-CII of 2012 (O&M) in CR No.2872 of 2012 -9- to serve the ends of justice as perceived mostly by the parties and not strictly by the Court.
(RAJIV NARAIN RAINA) JUDGE 15.09.2014 manju MANJU 2014.09.29 10:25 I attest to the accuracy and authenticity of this document Chandigarh