Timely submission of documentary evidence and the potential for denovo trial if additional documents are allowed at the final arguments stage.

Pratibha Rani, J.

CM No.27912/2016

1. For the reasons stated in the application 19 days’ delay in filing the appeal is condoned.

2. Application is disposed of.

CM No.27911/2016

Allowed subject to all just exceptions.

MAT.APP.(F.C.) 104/2016

1. The appellant/wife is aggrieved by the common order dated June 06, 2016 whereby the learned Principal Judge, Family Court (NW), Rohini, Delhi has dismissed the three applications filed by her on three different dates of hearing.

2. A divorce petition was filed by the respondent/husband for dissolution of marriage on account of cruelty being committed by the appellant/wife.

3. The evidence by both the parties stands closed and the matter is now listed for final arguments. At that stage the appellant/wife filed three applications: (i) application filed on May 26, 2016 to recall PW-1 Jai Solanki (respondent/husband) for further cross examination; (ii) application filed on May 30, 2016 under Order VIII Rule 1A(3) CPC to lead additional evidence; and (iii) application filed on June 06, 2016 to recall PW-2 Ishwar Singh for cross examination.

4. The learned Principal Judge, Family Court while dealing with the three applications filed by the appellant/wife observed that so far as prayer for recalling PW-1 and PW-2 for cross examination is concerned, both of them have been cross examined at length by the counsel for the appellant/wife. Change of counsel by the appellant/wife, in the backdrop that she had been changing counsel very frequently to the extent that six counsel have represented her at different stages, was considered to be not a ground to permit recall of PW-1 and PW-2 for cross examination just for the reason that newly engaged counsel was not satisfied with the cross examination conducted by the previous counsel.

5. The prayer of the appellant/wife to place on record a bunch of documents containing 108 pages and affording an opportunity to her to prove the same was declined by the learned Principal Judge, Family Court on the ground that these documents were well within her power and possession, she was represented by a counsel, the documents should have been filed at the appropriate stage and there is no pleading in the written statement in respect of those documents. It was also noted that in the Transfer Petition No.79/2014 the High Court of Delhi vide order dated January 13, 2015 had already directed the concerned Court to dispose of the case expeditiously preferable within a year. The applications have been filed at the stage of final arguments and if allowed it would have the effect of putting the clock back by 2½ years.

6. Learned counsel for the appellant/wife has submitted that due to the negligence of the previous counsel the documents could not be produced earlier at the stage of filing the written statement or even during the examination of appellant/wife and in the interest of justice it is required that an opportunity be given to appellant/wife to prove these documents. Learned counsel for the appellant/wife has further submitted that since cross examination of the respondent/husband (PW-1) and PW-2 was not conducted effectively by the previous counsel, they may be permitted to be recalled for further cross examination.

7. Order XIII Rule 1 stipulates that documentary evidence has to be produced at or before the settlement of issues.

8. In the decision reported as (194) 4 SCC 659 Billa Jagan Mohan Reddy & Anr. vs. Billa Sanjeeva Reddy & Ors. it was held as under:

‘It is clear from its [Order XIII Rule 1] bare reading that the parties or their counsel shall be required to produce all the documentary evidence in their possession or power which they intend to rely on to establish their right along with pleadings or before settlement of the issues. The Court is enjoined under sub-rule (2) to receive such documents provided they are accompanied by an accurate list thereof prepared in the prescribed form. If they are not in the party’s possession or custody, it shall be filed by th