IMPORTANT POINT
Relevance of evidence in adjudicating claims and the court's discretion in considering the delay in submitting evidence.

JUDGMENT

Manmeet Pritam Singh Arora, J. (Oral)

1. This petition filed under Article 227 of the Constitution of India impugns the order dated 07.11.2023 passed by Civil Judge-02, West, Tis Hazari, Delhi (`Trial Court') in Suit No. 848/2016, titled as S. Rajinder Singh v. Vikas Mohan, dismissing the application filed by the Petitioner herein under Order VIII Rule 1A and Section 151, of the Code of Civil Procedure, 1908 (`CPC') seeking permission to place on record three (3) black and white photographs filed at page Nos. 84 to 86 (Annexure P-7) to this petition.

1.1. The Petitioner is defendant no.1 and Respondent Nos.1, 2 and 3 are the plaintiffs in the civil suit.

1.2. The civil suit has been filed by the plaintiffs' inter-alia for mandatory injunction, recovery of damages on 08.11.2005.

2. The learned counsel for the Petitioner states that in the site plan filed with the plaint, Respondent Nos. 1 to 3 have alleged that the portion identified as `Mark A' in the site plan was carved out by the Petitioner herein on 10.11.1993.

2.1. He states that, however, it is the defence of the Petitioner herein that the said area `Mark A' which is identified as `kholki' has been in existence for a very long time and was also in existence during the lifetime of grandfather of the Petitioner herein i.e., late Mr. Ram Murti Lal.

2.2. He states that late Mr. Ram Murti Lal died on 04.09.1992. He states that the three (3) photographs, which are now sought to be placed on record were taken during the lifetime of late Mr. Ram Murti Lal and he can be seen in these photographs. He states that in these photographs the `kholki' is visible and it is this `kholki' which has been shown as `Mark A' in the site plan annexed with the plaint.

2.3. He states that the negatives of these three (3) photographs have been filed on the record of the Trial Court.

2.4. He states that, therefore, the said photographs are relevant for determination of the issue whether `Mark A' was dug up on 10.11.1993 as alleged in the plaint or not.

2.5. He has also during the course of oral hearing handed over enlarged copies of the photograph filed at page 86 of this petition, using the same photograph. He states that in this enlarged photograph, the `kholki' is seen at `Mark A' and is visible in the photograph as per the Petitioner.

3. In reply, learned counsel for the Respondents states that in view of the fact that these photographs were readily available with the Petitioner and considering that the Petitioner has been extensively cross examined, there is no infirmity in the order of the Trial Court disallowing these documents to be brought on record, at this stage.

3.1. He states that without prejudice to his rights and contentions, in case this Court is considering permitting the said photographs to be taken on record, the right of the Respondent Nos. 1 to 3 to lead rebuttal evidence be reserved.

3.2. He, further, states that the Respondents do not admit to the veracity of the claim of the Petitioner raised by relying upon these photographs.

4. This Court has considered the submission of the learned counsel for the parties and perused the record.

5. In this suit one of the issues arising for consideration is the date of construction of the `kholki'. The existence of the `kholki' is not in dispute. It is the contention of Respondent Nos. 1 to 3 that the said `kholki' was constructed unauthorisedly on 10.11.1993. Whereas it is the defence of the Petitioner herein that the `kholki' was in existence since the time of his forefathers.

6. The `kholki' for which the mandatory injunction is sought in the plaint, is admittedly as on date located in Shop no. 1603 The area in which the `kholki' exists has been demarcated as `Mark A' on the site plan. The Petitioner seeks to place on record the said three (3) photographs of Shop No. 1603 to prove this fact of pre-existence of the `kholki'.

7. In view of the contention of the Petitioner that the gentleman seen in these photographs is his grandfather i.e., lat