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IN THE HIGH COURT OF DELHI AT NEW DELHI
AMIT BANSAL, J.
Laxman Public School Society & Anr. - Appellant
Versus
Navshakti Educational Society & Ors. - Respondents
CM(M) 1000 of 2021 and CM No. 39841 of 2021 (for stay)
Decided on : 23-11-2021
Constitution of India, 1950 - Article 227 - Code of Civil Procedure, 1908 - Order VII Rule 14 - Mode of proof - Admissibility of document marked - Appointed Local Commissioner - Petitioners states that he has no objection with regard to examination of PW-9 by a Local Commissioner. He draws attention of the Court to paragraph 3 of the evidence by way of affidavit of PW-9 to contend that certain documents are sought to be exhibited by way of present affidavit which are beyond what was permitted by this Court in its order - Whether objection with regard to mode of proof and/or admissibility of a document should be decided by Trial Court immediately or at the stage of final hearing of the case, would depend on factual circumstances of each case.
Finding of the Court :
Trial Court should not have marked as exhibits the photocopies of the documents filed by the plaintiff in the face of objections raised by defendant and further, that the issue of admissibility of the photocopies of the documents should have been decided immediately - It clear that Local Commissioner is only to record the objections at the time of recording of evidence and the said objections are to be considered by Court at the time of final arguments in the case - Trial Court has validly exercised its jurisdiction and held that the objections raised by petitioners with regard to documents exhibited by the respondents in the affidavit of evidence of PW-9, shall be decided at the stage of final hearing of case. The endeavour of Trial Court is towards expeditious trial in the suit that has been pending since 1984 and no fault can be found with same. As noted above, this Court in its judgment between the same parties, had also directed that objections with regard to mode of admissibility of the documents will be recorded by the Trial Court, however, there was no direction given by this Court that the said objections be decided forthwith - There is no infirmity in the order passed by the Trial Court that requires interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. In fact, the present petition is clearly an attempt to delay the proceedings in the suit, which has been pending before the Trial Court since 1984.
Result: Petition Dismissed
JUDGMENT :
1. The present petition has been filed under Article 227 of the Constitution of India against the order dated 25th October, 2021 passed by the Senior Civil Judge (West), Tis Hazari Courts, Delhi in CS SCJ No.607119/2016, whereby the Trial Court while appointing a Local Commissioner to record the evidence of PW-9, has held that objections raised by the petitioners/defendants with regard to mode of proof and admissibility of document marked as Ex.PW-9/1(Colly) in the affidavit by way of evidence, will be considered at the time of final arguments.
2. Before I proceed to deal with the contentions raised by the counsels on merits, I would like to highlight the part of the impugned order wherein it is recorded that the present suit was filed in the year 1984 and is the oldest matter in the Court. It is a sad state of affairs that a suit filed in 1984 still remains pending.
3. Earlier, I had occasion to deal with an application (CM No.9194/2021) in a petition under Article 227 of the Constitution of India arising out of the same suit, which was disposed of vide order dated 1st October, 2021. The said petition, under Article 227 of the Constitution of India, being CM(M) 150/2020, was preferred by the respondents before this Court challenging the order dated 22nd January, 2020 passed in the suit, dismissing the application filed on behalf of the respondents herein under Order VII Rule 14 of the Code of Civil Procedure, 1908 (CPC) seeking to place on record additional documents. This Court vide judgment dated 6th February, 2020 while disposing of CM(M) 150/2020 filed on behalf of the respondents herein, passed the following directions:
(ii) The affidavit of PW-9 running into 182 pages is, however, rejected. The Plaintiff-PW9 shall filed a fresh affidavit within a period of two weeks from today before the Trial Court which shall not run into more than 25 pages. The only documents permitted to be exhibited by PW9 with his evidence would be the R TI records obtained from the DDA, which are sought to be placed on record, subject to the objections as to mode of proof and admissibility.
(iii) The examination in chief of PW9 shall commence on 24th February, 2020, which is the date already fixed before the ld. Trial Court. On the said date, examination-in-chief of PW9 shall be recorded, as well as all the objections which the Defendants wish to take. A date shall be fixed in the month of March for cross examination of PW9. The cross examination of PW9 shall be concluded within a period of three sessions before the Trial Court, of not more than three hours each. After the conclusion of PW9's evidence, PW8 shall appear before the Trial Court and shall be cross examined by the Defendants.”
4. After the aforesaid judgment was passed by this Court, it was expected that the trial in the suit would proceed smoothly and as per the schedule laid down by this Court. However, that was not to be. Since there was a delay of two days in filing of the affidavit of evidence of PW-9 from the time fixed by this Court, the Trial Court dismissed the application for condonation of delay in filing the said affidavit and did not take the same on record. Accordingly, an application was
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