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2014 DIGILAW 205 (DEL)

Kapil Gupta v. Punjab National Bank

2014-01-21

MANMOHAN SINGH

body2014
Judgment : Manmohan Singh, J. (Oral) 1. The plaintiff filed the suit for possession and recovery of future mesne profits/damages for unauthorized use and occupation of the premises bearing No.A-10, Kirti Nagar, New Delhi-110015. Issues in the above said matter were framed on 26th September, 2012. Parties were granted time to file their lists of witnesses within six weeks. It was also directed on the said date that the affidavits by way of evidence would be filed by the plaintiff within the same period. The plaintiff filed the affidavit as evidence on 30th November, 2012. After that, the plaintiff filed an application under Order VII Rule 14 read with Section 151 CPC being I.A. No.2692/2013 in which the prayer was made that the two lease deeds filed on 23rd January, 2013 be taken on record. It was also prayed that the site plan of the premises in question which was filed separate with a list of document be also taken on record. The contention of the plaintiff in the application was that these two lease deeds would be proved by the witnesses as per law. The application was duly opposed by the defendant. However, while disposing of the application on 18th February, 2013, the Court did not notice the prayer with regard to the two lease deeds except the prayer for placing on record the site plan. It was recorded in the order that the apprehension of Mr.Katyal, learned counsel for the defendant was baseless with regard to the two lease deeds as the only prayer made in the application was for placing on record the site plan. Admittedly, in the said application, the prayer was very much there for taking the lease deeds on record. The matter was sent before the Local Commissioner for recording the evidence. 2. When the statement of PW-3 Mr.Anil Chawla was being recorded, the learned counsel for the defendant objected to the recording of the statement of the said witness on the ground that this witness has come to prove the lease deed dated 15th September, 2009 in respect of property No.78/3, WHS, Kirti Nagar, New Delhi-110015 who had also brought the certified copies of the said lease deed to be filed in the present case. The objection was raised, mainly, on the reason that vide order dated 18th February, 2013, this Court has only allowed the plaintiff to place on record the site plan and not the lease deeds. 3. The submission of the learned counsel for the plaintiff before the Local Commissioner was that the statement of PW-3 should be recorded subject to objections raised by the defendant and the evidence be not stopped and the witness be not returned back without recording his evidence. However, the learned counsel for the defendant objected to the same for recording the evidence of PW-3 as well as exhibition of the lease deed dated 15th September, 2009 as Ex.PW-2/1 in his statement as PW-3, as the said lease deed was not allowed to be placed on record. The similar objection is taken by the learned counsel for the defendant when the matter is sent back by the Local Commissioner in view of the objections raised by the defendant. 4. I have heard Mr.Harish Malhotra, learned Senior counsel appearing on behalf of the plaintiff who has referred a decision of the Supreme Court in support of his submissions, in the case of Ashok Sharma vs. Ram Adhar Sharma, (2009) 11 Supreme Court Cases 47. The relevant paras of the said judgment read as under:- “12. Order 16 Rule 1-A of the Code runs as under:- “1-A. Production of witnesses without summons. - Subject to the provisions of sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents.” A plain reading of this provision would clearly show that Rule 1-A of Order 16 of the Code has been substituted by the Legislature to empower a party to bring any witness without obtaining summons subject to the permission of the Court, even if the name of the witness is not in the list to be presented within 15 days of settlement of issues. 13. After issues were framed, the respondent in order to prove the date of completion of construction of the Society in which the suit premises is located, summoned Sh. Pawan Kumar Vasudeva, the President of the Society, (PW-3) to bring the record of completion of construction of the suit premises which is located in the said area of the Society. 13. After issues were framed, the respondent in order to prove the date of completion of construction of the Society in which the suit premises is located, summoned Sh. Pawan Kumar Vasudeva, the President of the Society, (PW-3) to bring the record of completion of construction of the suit premises which is located in the said area of the Society. The trial court had allowed the summoning of the President of the Society for the purpose of showing the time of the completion of construction of the suit premises. PW-3 identified his signature on Ext.PW-1/3 which was the certificate issued by the said society to the respondent. Thereafter, the said witness produced the documents of completion of construction of the society which were summoned by the respondent, but the trial court by the order dated 2-5-2006 rejected the application and did not allow the witness to place the documents brought by him on record on the ground mentioned herein earlier. 14. As noted herein earlier, the High Court has reversed the order of the trial court and allowed production of the document produced by PW-3. In our view, there is no ground for which we can hold that the order of the High Court was not properly passed. 15. As noted herein earlier, Order 16 Rules 1 and 1-A of the Code, if read together, would clearly indicate that it is open to a party to summon a witness to the Court or even may, without applying for summons, bring a witness to give evidence or to produce documents. Since Rule 1-A is subject to the provisions of sub-Rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness, who might have been brought by a party for the purpose, the leave of the Court may be necessary. This by itself would not mean that Rule 1-A was in derogation to sub-Rule (3) of Rule 1. Such document brought by the said witness can be taken on record and it is not necessary that the plaintiff must have filed on record the copies of the said document earlier. 16. Be it mentioned herein, the question of filing a copy of the said document by the plaintiff could not also arise in view of the fact that the document was or cannot be in possession of the plaintiff-respondent. 16. Be it mentioned herein, the question of filing a copy of the said document by the plaintiff could not also arise in view of the fact that the document was or cannot be in possession of the plaintiff-respondent. Since the plaintiff-respondent was simply a member of the Society, therefore, the record of completion of the construction of the suit premises can only be proved by the plaintiff/respondent by production of documents which was only in possession with the Society. 17. While considering the scope of Order 16, Rule 1 and Rule 1-A of the Code, this Court in Mange Ram vs. Brij Mohan & Ors., AIR 1983 SC 925 held that the Court cannot decline to examine the witnesses produced by the plaintiff nor the court could refuse to take the documents on record through the witnesses. In para 11 of the said decision, this Court observed as follows:- “11. ....But if on the date fixed for recording the evidence in an election petition, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1A.” (Emphasis Supplied) 18. Again in Vidhyadhar vs. Manikrao & Anr., 1999 (3) SCC 573 , this Court following the decision of Mange Ram vs. Brij Mohan & Ors. (supra) has also held that Order 16, Rule 1 and Rule 1-A of the Code permits the court to pass the order directing the witnesses to take the documents on record. Only, while dealing with the application for production of documents under Order 16 Rule 1 read with Rule 1-A of the Code, what is required was that, leave of the court would be necessary. 19. In this view of the matter and applying the principles laid down in the aforesaid two decisions of this Court, we are not inclined to interfere with the impugned order of the High Court by which the High Court had allowed the documents to be taken on record to prove the date of completion of the construction of the suit premises within the area of the Society. At the risk of repetition, it must be stated that the date of construction of the suit premises, which is located within the area of the Society, cannot be proved except by the production of the document of the society which could only be produced by the Society.” 5. The contention of Mr.Malhotra is that in the I.A. No.2692/2013 which was filed in the month of February, 2013, the prayer for taking on record the lease deeds was very much there but due to oversight it did not come to the notice of the Court otherwise the said prayer ought to have been granted by the Court at that time. 6. The submission of Mr.Malhotra is opposed by the learned counsel for the defendant who states that the lease deeds ought to have been filed by the plaintiff along with the plaint or at least before framing of the issues. On this, Mr.Malhotra argued that these two lease deeds have to be proved by the concerned witnesses. Therefore, under the provisions of Order 16 Rule 1, the witnesses should be allowed to produce the documents who are summoned by the plaintiff. 7. The provisions of Order 16 Rule 1 read as under:- “1. List of witnesses and summons to witnesses.- (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. (3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).” 8. I agree with the submissions of Mr.Malhotra that when the I.A. No.2692/2013 under Order VII Rule 14 CPC was filed, there was a prayer for taking the two lease deeds on the record, but it appears that due to oversight, the said prayer was not noticed by the Court. Therefore, it was recorded in the said order that Mr.Katyal’s apprehension was baseless as the only prayer in the application was for placing on record the site plan. I am of the view that had at that time the Court noticed the prayer of taking the two lease deeds dated 2nd April, 2008 and 15th September, 2009, the said prayer might or might not have been allowed. As the same was not noticed by the Court at that time, it appears that by taking the advantage, the defendant is now raising the objections at the time of recording the statement of PW-3. In view of the decision of the Supreme Court in the case of Ashok Sharma vs. Ram Adhar Sharma (supra) as well as the provisions of Order 16 Rule 1 CPC and the facts and circumstances in the present case, the two lease deeds filed by the plaintiff are taken on record, however, the same shall have to be proved in accordance with law. 9. The parties shall appear before the Local Commissioner on 22nd January, 2014 the date already fixed. 10. Dasti, under the signatures of the Court Master.