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IN THE HIGH COURT OF DELHI AT NEW DELHI
Manmeet Pritam Singh Arora, J.
Sh. Desh Deepak Sharma - Appellant
Versus
Sh Harsh Khosla (Since Deceased Through Lrs) - Respondent
CM(M) 233 of 2022
Decided On : 17-10-2023
Section 151 of CPC - Application for fresh affidavit and witness examination - Code of Civil Procedure, 1908 (CPC) - Section 151, Order XXXVII of CPC, Order 8 Rule 1A of CPC - The court dismissed the application under Section 151 of CPC seeking permission to file fresh affidavit and to examine a witness, and subsequent application seeking issuance of summons to official witnesses. The court held that the documents sought to be produced were not relevant to the subject matter of the present suit and were beyond the pleadings of the parties. The defendant's attempt to place additional documents on record was dismissed, and the court imposed costs on the defendant.
Fact of the Case:
The defendant filed applications under Section 151 of CPC seeking permission to file fresh affidavit and to examine a witness, and subsequent application seeking issuance of summons to official witnesses. The Trial Court dismissed both applications and imposed costs on the defendant.
Finding of the Court:
The court found that the documents sought to be produced were not relevant to the subject matter of the present suit and were beyond the pleadings of the parties. The defendant's attempt to place additional documents on record was dismissed, and costs were imposed on the defendant. The court granted the defendant a last opportunity to lead evidence, but the opportunity would stand forfeited if not availed.
Issues: Relevance of additional documents, compliance with pleadings, and granting of last opportunity to the defendant for evidence.
Ratio Decidendi: The court held that in the absence of pleading, evidence produced by the parties cannot be considered, and no party should be permitted to travel beyond its pleading. The documents sought to be produced were not relevant to the subject matter in dispute and were not part of the pleadings of the parties. The court granted the defendant a last opportunity to lead evidence, but the opportunity would stand forfeited if not availed.
Final Decision: The court dismissed the applications under Section 151 of CPC and granted the defendant a last opportunity to lead evidence, with the warning that the opportunity would stand forfeited if not availed.
JUDGMENT
Manmeet Pritam Singh Arora, J. (Oral) - The CM(M) No. 233/2022 filed under Article 227 of Constitution of India impugns the order dated 09.03.2022 passed by the ADJ-07, West District, Tis Hazari Courts, Delhi (`Trial Court') in Suit No. 10416/2016 (`the suit'), titled as `Harsh Khosla v. Desh Deepak Sharma', dismissing the application filed by the Petitioner under Section 151 of Code of Civil Procedure, 1908 (`CPC') (1st application) seeking permission to file fresh affidavit by way of evidence dated 03.03.2022 in place of earlier affidavit dated 30.01.2022 and to examine Sh. H.K. Tolani, Advocate, as a witness of defendant. The Trial Court further imposed costs of Rs.10,000/- on the Petitioner.
1.1. The Petitioner thereafter in CM(M) No. 319/2022 impugns the subsequent order dated 29.03.2022 passed by the Trial Court, dismissing the application filed by the Petitioner under Section 151 of (2nd application) seeking issuance of summons to official witnesses to prove certain documents.
2. The Petitioner is the defendant and the Respondent is the plaintiff in the civil suit. The said suit had been initially filed under Order XXXVII of CPC for recovery of Rs.40,82,100/- and interest thereon at the rate of 18% per annum.
2.1. The civil suit was filed on 18.07.2001 and conditional leave to defend was granted by the Trial Court to the defendant vide order dated 19.03.2005.
2.2. The Trial Court thereafter vide order dated 16.03.2018 struck off the defence of the Petitioner for violating the interim order dated 19.03.2005. The said order dated 16.03.2018 was impugned by the Petitioner in CM(M) No. 1590/2018, wherein this Court while disposing of the said petition, vide order dated 09.10.2019 granted an opportunity to the defendant to lead its evidence on terms and conditions set out in the order dated 09.10.2019. Pertinently, this Court was of the opinion that the suit needs to be decided expeditiously and within a period of one (1) year from 09.10.2019. The said period expired in the year 2020.
2.3. The plaintiff examined five witnesses, wherein Ms. Anita Sharma was examined as PW-5. The defendant cross-examined PW-5, Ms. Anita Sharma and her evidence stood concluded on 26.02.2022.
2.4. The Trial Court thereafter set down the matter for defendant's evidence (`DE') vide order dated 26.02.2022. At this stage, the Petitioner filed the 1st application dated 03.03.2022 under Section 151 of CPC for placing on record the revised evidence by way of affidavit of the defendant, who proposed to examine himself as DW-1 and evidence affidavit of Sh. H.K. Tolani, Advocate, who was proposed to be examined as DW-2.
2.5. By this application, the Petitioner also sought leave to place on record additional documents and it was stated that filing of the said documents has become necessary in view of the cross-examination of PW-5 i.e., Smt. Anita Sharma, conducted on 26.02.2022.
2.6. The Trial Court vide impugned order dated 09.03.2022 dismissed the 1st application, imposed costs of Rs.10,000/- on the Petitioner and listed the matter for defendant's evidence on 14.03.2022.
2.7. The Petitioner, thereafter moved the 2nd application on 24.03.2022 for summoning the two (2) official witnesses with the record of the legal proceedings pending between the defendant and his family members.
2.8. The Trial Court vide order dated 29.03.2022 concluded that the documents sought to be summoned through the official witnesses were the same documents which had already been disallowed by the Trial Court previously vide order dated 09.03.2022. The Trial Court therefore, in view of the aforesaid fact held that 2nd application could not be maintained and dismissed the same. In addition, the Trial Court observed that though the matter is listed for DE, there was no witness present on behalf of the defendant and accordingly, the Trial Court closed the DE.
3. The learned counsel for the Petitioner states that PW-5, Ms. Anita Sharma, was an unlisted witness and the plaintiff was permi
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