Research › Search › Judgment

Delhi High Court · body

2011 DIGILAW 843 (DEL)

Haldiram Bhujiawala & Anr v. Anand Kumar Deepak Kumar & Others

2011-09-08

INDERMEET KAUR

body2011
Indermeet Kaur, J. (Oral) 1. The present petition has impugned the order dated 16.07.2011 vide which the application filed by the defendant with a request to take on record his amended written statement and to frame an additional issue had been dismissed. 2. Record shows that this is a suit for permanent injunction filed by the plaintiffs against the defendants. The plaintiffs and defendants are both descendants of Ganga Bishan @ Haldiram Bhujiawala; the plaintiffs claimed to be the registered proprietor of the trademark and trade-name Haldiram Bhujiawala; apprehending violation of this right, the plaintiffs had filed the present suit seeking injunction against the defendants. The defendants had disputed the claim; pursuant to permission granted by the Court to amend their written statement, the defence of the defendant in his amended written statement was that the deed of dissolution dated 16.11.1974 was a forged and fabricated document; this deed had been executed by the defendant under pressure. Initially the amendment in the written statement had been permitted by the trial Judge; this order had been upset by the High Court; the Apex Court had reaffirmed the order of the trial Judge vide its order dated 01.10.2008. The impugned order has extracted the relevant portion of the order of the Apex Court wherein the Apex Court had inter alia noted as under:- "Proving of the document involves proving of execution of the document as well as proving of its contents (see AIR 1983 Bombay 1). At the stage of proving the execution of the document, it would be open to the appellants to cross-examine the witness on the question of execution as well as its content. In that regard, they can rely upon material in their possession and if the trial court finds that there is prima facie case of the forgery, it can certainly give an opportunity to the defendant appellants herein to file an additional written statement and it would be open to the trial court also to frame an additional issue at that stage." 3. Pursuant to the order of the Apex Court PW-1 had been examined in chief and cross-examined in part; at that stage i.e. in the midst of the cross-examination of PW-1 an application had been filed by defendant No. 4 seeking to place on record the amended written statement along with a request for framing of an additional issue; the submission before the trial Court was that the cross-examination of PW-1 had revealed that the deed of dissolution dated 16.11.1974 was prima facie a forged and fabricated document. This contention of defendant No. 4/petitioner had been rejected; trial Court had noted that the cross-examination of PW-1 is yet in progress; moreover other witnesses also have to be examined by the plaintiffs to prove the contents and execution of the aforenoted dissolution deed which included the attesting witness, chartered accountant as also the principal borrower of the company. Today on oral query, learned counsel for the respondents/plaintiff states that a total sum of 19 witnesses (as mentioned at Sr. No. 1 to 8, 12 to 20, 24 & 25 in the list of witnesses filed in November, 2008 before the trial Court) have to be examined to prove the contents and execution of the said dissolution deed. Admittedly PW-1 is yet under cross-examination. 4. The impugned order had examined the cross-examination of PW-1 and had noted that this cross-examination of PW-1 prima-facie did not evidence that the dissolution deed was forged or fabricated. This part of the order dated 16.07.2011 suffers from an illegality; admittedly the evidence to prove the dissolution deed was yet in progress; apart from PW-1 other witnesses had also to be examined. In this view of the matter, trial court giving its prima-facie finding on the dissolution deed without examining the entire gamut of the evidence shows his prejudice and bias. The observation of the trial court on this aspect i.e. its prima facie holding that dissolution deed dated 16.11.1974 was not forged or fabricated is set aside. 5. The petitioner will lead his evidence on the proof of this dissolution deed to prove its contents and execution in terms of directions of the Apex Court dated 01.10.2008. The observation of the trial court on this aspect i.e. its prima facie holding that dissolution deed dated 16.11.1974 was not forged or fabricated is set aside. 5. The petitioner will lead his evidence on the proof of this dissolution deed to prove its contents and execution in terms of directions of the Apex Court dated 01.10.2008. After the entire evidence has been led on this issue, the trial Judge will afresh examine the entire gamut of evidence and deal with the application of the petitioner as to whether the said dissolution deed dated 16.11.1974 is prima facie forged or fabricated and if so, whether the additional written statement and the consequent additional issue is required to be framed in this regard in view of directions of the Apex Court. 6. With this modification, this petition is disposed of.