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2015 Supreme(Del) 961
IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
SUMAN KAPOOR - Petitioner
versus
RAKESH KUMAR - Respondent
CM(M) 181/2015 and CM No. 4063/2015 (Stay)
Decided on : 29.6.2015
Advocate Appeared:
For the Petitioner:Mr. Atul T.N., Advocate.
For the Respondent:Mr. Ashok Kr. Nenwani, Advocate.
The onus to prove documents lies with the party relying on them, and the court may decline permission to lead additional evidence if there is no element of surprise in the opposing party's denial.
Headnote:
Additional Evidence - Civil Procedure Code - Order XVIII Rule 3, Indian Evidence Act - Section 73 - Order XXVI Rule 10(b) CPC - [Order XVIII Rule 3, Indian Evidence Act, Section 73, Order XXVI Rule 10(b) CPC] - The court declined the petitioner's application to lead additional evidence, citing that the onus to prove the documents was on the petitioner/plaintiff, and there was no element of surprise in the respondent's denial of executing the documents. The court referred to relevant provisions in the Civil Procedure Code and the Indian Evidence Act to support its decision.
Fact of the Case:
The petitioner sought permission to lead additional evidence in a suit for specific performance, as the defendant denied executing certain documents relied upon by the petitioner. The court declined the application, stating that the onus to prove the documents was on the petitioner, and there was no element of surprise in the respondent's denial.
Finding of the Court:
The court found that the petitioner could not seek expert opinion and lead additional evidence after the entire trial was over.
Issues: The main issue was whether the petitioner could be permitted to lead additional evidence after the trial was completed.
Ratio Decidendi: The court held that the onus to prove the documents was on the petitioner, and there was no element of surprise in the respondent's denial, thus declining the application for additional evidence.
Final Decision: The petition and the application were dismissed.
MUKTA GUPTA, J.
1. Aggrieved by the order dated 15th November, 2014 whereby the application under Section 151 CPC of the petitioner/plaintiff in suit CS No. 359/2012 titled as ‘Suman Kapoor Aka Seema Kapoor vs. Rakesh Kumar’ seeking permission to lead additional evidence was declined, the petitioner prefers the present petition. Vide the impugned order Learned Additional District Judge held that issues in the suit were settled on 19th March, 2008, the parties had already led their evidence and the matter was listed for final arguments when the application was filed by the petitioner/plaintiff seeking permission to lead additional evidence. The reason assigned for permission to lead additional evidence was that since the defendant has raised controversy about the documents Ex.PW1/2 to PW1/4, hence, the opinion of the handwriting expert was necessary. The learned Additional District Judge held that it was not the case of the petitioner/plaintiff that she was not aware of the defence raised by the defendant at the time of leading her evidence or cross examining the defendant’s witness. Thus, the application was dismissed with the cost of Rs. 5,000/-.
2. Learned counsel for the petitioner states that in the suit the petitioner/plaintiff has relied upon the documents which were duly signed by the defendant i.e. Ex.PW1/2 to Ex. PW1/4. Since in cross examination the defendant did not admit these documents, the petitioner/plaintiff is required to prove the same by leading additional evidence. Learned counsel for the petitioner relies upon the decision of this Court in Subash Chander Vs. Bagwan Yadav 2010 VI AD Delhi 96 to contend that the Court even has suo moto power to call additional evidence or expert evidence. Once the attesting witness denies having witnessed the documents the same cannot be proved under Section 73 of the Indian Evidence Act, however, this proposition does not relate to a case where the executant of the document denies the signature. The suit for specific performance filed by the petitioner/plaintiff is based upon these documents only and in case the same are not permitted to be proved by leading additional evidence, serious prejudice would be caused to the petitioner/plaintiff. The Court is even empowered to direct commission for scientific evidence under Order XXVI Rule 10(b) CPC. Only after the witness denies executing the documents, the petitioner/plaintiff was required to prove the same.
3. Learned counsel for the respondent contends that the onus to prove his case was on the petitioner/ plaintiff and having led his entire evidence, he cannot now seek permission to lead additional evidence.
4. Heard learned counsel for the parties.
5. Order XVIII CPC provides the manner in which evidence has to be held by the parties as under:
“1. Right to begin-The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.
2. Statement and production of evidence.-
(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
(3A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.
(3B) A copy of such written arguments shall be simultaneously furnished to
