Delhi District Court
Sh. Sumeet Puri vs Ms. Jyoti Puri on 15 May, 2023
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL DISTRICT JUDGE-01
SOUTH-EAST DISTRICT, SAKET COURTS: NEW DELHI
MCA DJ No:- 14/21
Sumeet Puri v. Jyoti Puri
Sh. Sumeet Puri
S/o Late Sh. Yogesh Chander Puri
R/o L-1/194-B, First Floor
LIG DDA Flats, Kalkaji
New Delhi-110019
...... Appellant
versus
Ms. Jyoti Puri
W/o Sh. Sumeet Puri
D/o Late Sh. Kashmiri Lal Kapoor
R/o 5/2, Kalkaji Extension
New Delhi-110019
...... Respondent
Date of Institution : 06.10.2021
Date of Reserving Judgment : 27.04.2023
Date of Decision : 15.05.2023
JUDGMENT
1. This miscellaneous civil appeal is filed by the appellant under Section 151 of The Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') to impugn the order dated 27.03.2021 passed by the Court of Ld. ACJ-Cum-CCJ-Cum-ARC, South-East, Saket Courts, New Delhi in CS SCJ No. 637/19, titled as 'Sumeet Puri v. Jyoti Puri & Ors.'. For the sake of convenience, Digitally signed AKASH by AKASH JAIN Date:
JAIN 2023.05.15 16:31:08 +0530 MCA DJ No:- 14/21 Sumeet Puri v. Jyoti Puri Page No. 1 of 13 I would be referring to the parties as per their original nomenclature before Ld. Trial Court.
Factual matrix
2. Briefly stated, both plaintiff (appellant herein) and defendant no. 1 (respondent herein) are husband and wife and have not been on cordial terms. Both of them got married on 09.12.2008 and out of their wedlock, two children were also born.
It is the case of plaintiff that defendant no. 1 never took care of the children and always picked up quarrels with him in front of children. It is alleged that defendant no. 1 used to pressurize him to live separately from his parents and brother and also forced him to sell his property and purchase a flat in her name. It is alleged that defendant no. 1 had left her matrimonial home on 01.10.2018 and made false complaints against the plaintiff before DCW. The plaintiff had filed divorce petition against defendant no. 1 which is reportedly pending before Ld. Principal Judge, Family Courts, South-East District, Saket Courts, New Delhi. Vide suit CS SCJ No. 637/19, the plaintiff has claimed damages to the tune of Rs. 1,00,000/- along with interest from defendant no. 1 and her family members for causing alleged physical/mental torture, agony, humiliation and financial loss to him.
3. By way of this appeal, it is submitted by plaintiff that during the proceedings of the civil suit no. CS SCJ No. 637/19 replication was filed by the plaintiff on 28.02.2020 and Ld. Trial Court directed both the parties to file affidavit of admission/denial of documents. Thereafter, vide order dated 19.08.2020, both the parties were re-directed to file affidavit of admission/denial of AKASH Digitally signed by AKASH JAIN MCA DJ No:- 14/21 JAIN Date: 2023.05.15 16:31:19 +0530 Sumeet Puri v. Jyoti Puri Page No. 2 of 13 documents. On next date of hearing i.e. 23.10.2020, none appeared on behalf of defendants and last opportunity was granted to them to file the affidavit of admission/denial of documents. Thereafter, on 15.12.2020, as none appeared on behalf of defendants on first call, opportunity of defendant to file affidavit of admission/denial of documents was closed. During course of the day, Ld. Counsel for defendants appeared and stated that he had already sent an email to the Court Id regarding affidavit on 30.09.2020 and also filed a physical copy of the same in the Court. On checking the record, no such affidavit/email was found to have received in Court. The matter was then fixed for hearing on 22.01.2021.
4. On 18.12.2020, Ld. Counsel for the defendants moved an application under Sections 151 CPC for taking on record affidavit of admission/denial of documents on behalf of defendant no. 1 which was taken up on 22.01.2021. He also moved separate applications under Order I Rule 10 CPC and under Order VII Rule 11 CPC on 22.01.2021. Ld. Trial Court noted that the application under Section 151 CPC did not bear the original signatures of applicant/defendant no. 1. As such, the matter was fixed for clarifications on 27.03.2021.
5. On 27.03.2021, the Ld. Counsel for plaintiff moved an application under Section 340 Cr.P.C., claiming that the signatures of defendant no. 1 in application under Section 151 CPC were forged. The said application though, was dismissed by Ld. Trial Court. The Court further heard arguments on the application under Section 151 CPC moved on behalf of defendant AKASH Digitally signed by AKASH JAIN MCA DJ No:- 14/21 JAINSumeet Puri Date: 2023.05.15 16:31:27 +0530 v. Jyoti Puri Page No. 3 of 13 no. 1 and disposed the same by conducting admission/denial of documents in the Court.
Grounds of appeal
6. The plaintiff/appellant is aggrieved of impugned order dated 27.03.2021 vide which his application under Section 340 Cr.P.C was dismissed and admission/denial of documents was permitted by the Court. The plaintiff has challenged the aforesaid order on primarily following grounds as under:-
(a) That impugned order dated 27.03.2021 is against the principles of natural justice;
(b) That the impugned order is arbitrary, perverse and passed without application of judicial mind;
(c) That Ld. Trial Court failed to appreciate that the right of defendants to file affidavit of admission/denial of documents had already been closed vide order dated 15.12.2020, yet Ld. Trial Court permitted admission/denial of documents on 27.03.2021;
(d) That Ld. Trial Court failed to consider the material available on record and passed an order on application under Section 340 Cr.P.C. in casual manner;
(e) That Ld. Trial Court failed to conduct the mandatory preliminary inquiry envisaged under Section 340 Cr.P.C. before disposing the said application.
7. No formal reply was filed by the defendant no. 1 in response to the present appeal and Ld. Counsel for defendant no. 1 straightaway addressed his arguments on the same.
Arguments
8. It is argued by Ld. Counsel for defendant no.
AKASH Digitally signed by AKASH JAIN Date: 2023.05.15 JAIN 16:31:35 +0530 MCA DJ No:- 14/21 Sumeet Puri v. Jyoti Puri Page No. 4 of 13 1/respondent that this appeal under Section 151 CPC is not maintainable in its present form as it is neither preferred under Section 96 of CPC which provides for appeals from original decrees nor filed under Order XLIII Rule 1 r/w Section 104 CPC which stipulates appeal from orders. Ld. Counsel for defendant no. 1 argued that even if it is assumed that the plaintiff had inadvertently mentioned wrong provision while filing the present appeal, no appeal anyway lies against the impugned order dated 27.03.2021 which is an interlocutory order and does not find mention in the list provided in Order XLIII Rule 1 CPC. Additionally, it is argued that the present appeal is nothing but a futile exercise just to delay the process of law and cause harassment to defendant no. 1, who is wife of plaintiff and with whom the relationship of plaintiff had turned sour. It is argued that admittedly right of defendants to file affidavits of admission/denial of documents was closed by Ld. Trial Court on 15.12.2020, however the affidavit was duly prepared by defendant no. 1 on 15.12.2020 and was subsequently filed on record on 18.12.2020. It is argued that both the application under Section 151 CPC as well as affidavit bore the signatures of defendant no. 1 and the same was not sought to be filed on behalf of defendants no. 2 to 4. Thus, no question of forging the signatures of defendants no. 2 to 4 arises, as alleged by the plaintiff. It is further argued that defendant no. 1 physically appeared before the Court on 27.03.2021 and affirmed the fact that both the application as well as affidavit in question bore her signatures, however, the scanned copy of application as well as affidavit was filed on record by the Counsel. It is argued that Ld. Trial Court put the controversy to rest byDigitally conducting admission/denial of AKASH signed by AKASH JAIN JAIN Date: 2023.05.15 16:31:43 +0530 MCA DJ No:- 14/21 Sumeet Puri v. Jyoti Puri Page No. 5 of 13 documents by defendant no. 1 in its presence and disposed the application thereafter. Thus, no question of causing any prejudice to plaintiff arises. With these arguments, it is prayed on behalf of defendant no. 1 that the present appeal is liable to be dismissed with heavy costs.
9. Ld. Counsel for plaintiff, on the other hand argued that in terms of Section 151 CPC, this Court has inherent power to entertain present appeal against the impugned order. It is argued that mere incorrect mention of the provision would not disentitle the party for seeking a relief, if it is otherwise available on merits. In support of his arguments, ld. Counsel for plaintiff has relied upon the judgments of Fullerton India Credit Co. Ltd. v. Aftab Ahmed, CM(M) No. 364 of 2020 and Vijay Kumr Nagpal v. Parveen Kumar Nagpal, CS(OS) No. 441 of 2020.
10. Ld. Counsel for plaintiff further argued that Ld. Trial Court had wrongly dismissed the application of plaintiff under Section 340 Cr.P.C. without conducting mandatory preliminary inquiry. In support of his arguments, Ld. Counsel for plaintiff relied upon following judgments as under:-
(i) The State of Punjab v. Jasbir Singh, in Criminal Appeal No. 335/2020;
(ii) Mehtab Son of Shri Mohd. Satbir v. Union of India, in FAO No. 60/2011;
(iii) Sajeevan v. State of Kerala, in Crl.M.C. No. 3275/2016;
(iv) K. Karunakaran v. T. V. Eachara Warrier, 1978 AIR 290;
(v) Chintakrindi Venkateswarlu v. Head Constable 6Th Town Police, 1997 (2) ALD Cri 120.Digitally signed by AKASH JAIN
AKASH Date:
JAIN 2023.05.15
16:31:50
+0530
MCA DJ No:- 14/21 Sumeet Puri v. Jyoti Puri Page No. 6 of 13
Analysis and findings
11. I have heard the rival submissions made on behalf of both the parties and carefully perused the material on record.
12. At the outset I may note that Ld. Counsel for plaintiff has failed to explain to the satisfaction of this Court as to the maintainability of present appeal under Section 151 CPC.
Impugned order dated 27.03.2021 is admittedly an interlocutory order which does not find mention in the list stipulated under Order XLIII Rule 1 CPC. It also did not culminate in a decree which is appealable under Section 96 CPC or under Order XLIII Rule 1A CPC.
13. The argument of Ld. Counsel for plaintiff that the present appeal can be entertained by this Court under Section 151 CPC by invoking its inherent jurisdiction is clearly misplaced. No doubt quoting a wrong provision does not create a bar or stand in way in considering an application, provided the Court is otherwise empowered to grant the relief sought in terms of CPC. In the present case, as discussed above, the appeal in question against impugned order dated 27.03.2021 does not lie either under Section 96 CPC or under Order XLIII Rule 1/1A CPC. In these circumstances, inherent jurisdiction of this Court cannot be invoked by this Court when specific remedies were available with the plaintiff in form of review application under Section 114 CPC or revision petition under Section 115 CPC. Thus, the contention of Ld. Counsel for defendant no. 1 holds merit that present appeal is not maintainable in its form before this Court.
AKASH Digitally signed by AKASH JAIN JAIN Date: 2023.05.15 16:31:56 +0530 MCA DJ No:- 14/21 Sumeet Puri v. Jyoti Puri Page No. 7 of 13
14. For the sake of arguments, even if it is assumed that this appeal could have been filed before this Court, I am afraid it falls short on merits as well. Let us first examine the impugned order dated 27.03.2021 passed by Ld. Trial Court which is reproduced as under:
"...27.03.2021 Pr: Cl for plaintiff with plaintiff.
Defendant no. 1 & Defendant no. 4 in person.
Cl for Plaintiff has moved an application u/s 340 CrPC on the ground that in an application filed in this Court earlier on 18.12.20, the signatures of Defendant no. 1 are forged. The alleged forgery, if any was done when the said application was not 'custodia legis'. Thus, Plaintiff is at liberty to seek appropriate remedy, as per law, by seeking/filing an independent complaint u/s 200 CrPC, if so advised.
Application u/s 340 CrPC is dismissed. Reply to application of defendant filed. (application u/s 151 CPC filed by Def no. 1 on 18.12.20). Copy supplied. Vide application as aforesaid, the defendant no. 1 is seeking to bring on record, her affidavit of admission denial on record. The said application & her affidavit does not bear the original signatures & only bears scanned signatures. She confirms that she only had filed the said affidavit & had mailed the same to court.
To put the controversy to an end, admission/denial of documents is done in court by defendant no. 1. Accordingly the application of defendant no. 1 is disposed off. To come up on arguments on application u/o 7 rule 11 r/w Order I Rule 10 filed by def no. 2 & 4 on 07.06.2021. The documents admitted by defendant no. 1 are exhibited as Ex. D1/A to Ex. D1/G. List for purpose fixed on 07.06.2021.
ACJ/ARC 27.03.21..."
15. It is argued by Ld. Counsel for plaintiff that the aforesaid order dated 27.03.2021 suffers from material irregularities as Ld. Trial Court permitted admission/denial of documents by defendant no. 1 despite closing of right of defendants to file affidavit of admission/denial of documents on AKASH Digitally signed by AKASH JAIN JAIN Date: 2023.05.15 16:32:04 +0530 MCA DJ No:- 14/21 Sumeet Puri v. Jyoti Puri Page No. 8 of 13 15.12.2020. The argument of Ld. Counsel for plaintiff though lacks merit. The right of defendants to file affidavit of admission/denial of documents was undoubtedly closed vide order dated 15.12.2020. However, the defendant no. 1 had moved an application under Section 151 CPC for taking on record affidavit of admission and denial on 18.12.2020, which application was duly replied to by the plaintiff. Ld. Trial Court considered the material on record and allowed the application by conducting admission/denial of documents by defendant no. 1 in its presence on the same date. No prejudice had apparently caused to the plaintiff. In this hindsight, Ld. Trial Court could have imposed some reasonable cost upon defendant no. 1 on account of delay in filing affidavit of admission/denial of documents, however, imposition of cost lies in realm of judicial discretion and no error or irregularity is otherwise found in the impugned order to the extent of allowing application under Section 151 CPC.
16. With respect to the another leg of argument of Ld. Counsel for plaintiff that Ld. Trial Court failed to conduct mandatory preliminary inquiry before dismissing the application of plaintiff under Section 340 Cr.P.C., it is pertinent to refer to Section 340 Cr.P.C. which reads as under:
340. Procedure in cases mentioned in section 195-
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
AKASH Digitally signed by AKASH JAIN MCA DJ No:- 14/21 JAIN Date: 2023.05.15 16:33:01 +0530 Sumeet Puri v. Jyoti Puri Page No. 9 of 13
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
****
17. Thus, upon receipt of an application under Section 340 Cr.P.C, the Court is not bound to make a complaint. Moreover, the Court 'may' hold a preliminary inquiry to decide whether an inquiry shall finally be made regarding commission of an offence under Section 195(1)(b). Reliance may be placed upon the landmark judgment of Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 wherein Hon'ble Supreme Court was pleased to hold as under:
".... 18. In view of the language used in Section 340 Cr.P.C. (the Court is not bound to make a complaint) regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the AKASH Digitally by AKASH JAIN signed MCA DJ No:- 14/21 JAINSumeet PuriDate: 2023.05.15 16:33:15 +0530 v. Jyoti Puri Page No. 10 of 13 interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded...."
18. Now, it is argued by Ld. Counsel for plaintiff that preliminary inquiry as contemplated under Section 340 Cr.P.C. is a mandatory exercise to be carried out by the Court before disposing an application. In support of his argument, he relied upon the cae of The State of Punjab v. Jasbir Singh, in Criminal Appeal No. 335/2020, while quoting a paragraph from the judgment wherein Hon'ble Apex Court discussed the findings of reference order in the case of Sharad Pawar v. Jagmohan Dalmiya & Ors., (2010) 15 SCC 290, which is reproduced as follows:-
".... The reference order is a conflicting view in Sharad Pawar vs. Jagmohan Dalmiya & Ors. 2 to the extent that in para 7 while noticing the submissions of the counsels it was observed that it was necessary to conduct a preliminary inquiry as contemplated under Section 340 Cr.P.C. and "also to afford an opportunity of being heard to the defendants, which was admittedly not done." The latter was stated to be contrary to the view in Pritish's case (supra)...."
19. However, Ld. Counsel for plaintiff failed to carefully peruse the ratio and decision of Hon'ble Apex Court in the aforesaid judgment of The State of Punjab v. Jasbir Singh (supra), wherein while concurring with the findings in cases of Iqbal Singh Marwah (supra) and Pritish v. State of Maharashtra, (2002) 1 SCC 253, Hon'ble Supreme Court of India held that Section 340 of Cr.P.C. does not mandate a preliminary inquiry by the Court. Digitally signed by AKASH AKASH JAIN Date:
JAIN 2023.05.15
16:33:23
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20. Thus, the impugned order dated 27.03.2021, vide which Ld. Trial court dismissed the application under Section 340 Cr.P.C. filed by the plaintiff in limine, without conducting preliminary enquiry is neither illegal nor irregular. In the case of Iqbal Singh Marwah (supra), it was also held by Hon'ble Supreme Court of India that Section 195(1)(b) Cr.P.C. would only be attracted in a given case when the offences enumerated in the said provision were committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in 'custodia legis'. In the present case, it was claimed on behalf of plaintiff that the defendant no. 1 filed the false and fabricated application on behalf of defendants no. 2 to 4 and also forged the signatures in register of oath commissioner on behalf of defendant no. 2 and 4, however, this argument of plaintiff is misconceived as application under Section 151 CPC as well as the affidavit were not filed by defendant no. 1 on behalf of defendants no. 2 and 4. Moreover, defendant no. 1 physically appeared before the Court on 27.03.2021 and affirmed that the application under Section 151 CPC and affidavit bore her signatures only, leaving no question of alleged forgery. Ld. Trial Court while considering the allegations made on behalf of plaintiff held that forgery if any, was done when the application was not 'custodia legis' and thereafter, dismissed the application under Section 340 Cr.P.C. Thus, the allegations and contentions made in the present appeal by the plaintiff are not tenable on merits as well. No infirmity is found in the impugned order dated 27.03.2021 which warrants any interference by this Court. Accordingly, the appeal in question is Digitally signed dismissed. AKASH by AKASH JAIN Date: JAIN 2023.05.15 16:33:30 +0530 MCA DJ No:- 14/21 Sumeet Puri v. Jyoti Puri Page No. 12 of 13
21. Trial Court Record be sent back to the Ld. Trial Court along with copy of this judgment.
22. File be consigned to record room after due compliance. Digitally signed by AKASH JAIN AKASH Date:
JAIN 2023.05.15
16:33:37
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ANNOUNCED IN OPEN (AKASH JAIN)
COURT ON 15.05.2023 ADJ-01, SOUTH-EAST
SAKET, NEW DELHI
This judgment contains 13 pages and each paper is signed by me.
Digitally signed by AKASH AKASH JAIN Date:
JAIN 2023.05.15
16:33:53
+0530
(AKASH JAIN)
ADJ-01, SOUTH-EAST
SAKET, NEW DELHI
MCA DJ No:- 14/21 Sumeet Puri v. Jyoti Puri Page No. 13 of 13