$~19 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(COMM) 557/2022 BASANT GOEL .....Plaintiff Through: Mr. Rupesh Tyagi and Mr. Samyak Raj, Advs.

versus SOM PRAKASH SETHI & ORS. .....Defendants Through: Mr. Saurabh Seth, Ms. Neelampreet Kaur and Mr. Abhiroop Rathore, Advs.

CORAM:

HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

O R D E R

% 27.08.2025

1. The issue which arises for consideration of this Court vide this order relates to the fact that the Plaintiff has served upon the Defendants a rebuttal evidence affidavit dated 19.09.2024 (‘rebuttal affidavit’) after the Plaintiff’s and Defendants’ evidence had been concluded.

2. The Defendants as recorded in the order dated 17.12.2024 raised an objection to the said rebuttal affidavit of the Plaintiff.

Arguments of the Defendants

3. It is stated that the rebuttal affidavit seeks to prove facts which are admittedly beyond the pleaded case of the Plaintiff in the plaint.

3.1. It is stated that the rebuttal affidavit seeks to explain the circumstances under which a WhatsApp chat dated 21.09.2021 (Ex. PW1/D1) was exchanged between the parties. It is stated that the said fact of CS(COMM) 557/2022 Page 1 of 9 WhatsApp chat dated 21.09.2021 has been concealed in the plaint and was not even pleaded in the evidence affidavit of ‘PW-1’ dated 17.02.2024.

3.2. It is stated that the WhatsApp chat dated 21.09.2021, now referred to in the rebuttal affidavit was always in the knowledge of the Plaintiff from the inception, as the same had already been filed along with the written statement by the Defendants. It is stated that even though the said WhatsApp chat was filed by the Defendants with the written statement, Plaintiff did not lead any evidence in his examination-in-chief. It is stated that Plaintiff had ample opportunity to deal with the WhatsApp chat in the evidence affidavit; and having failed to avail the said opportunity, the Plaintiff is seeking to explain its stand qua the said WhatsApp chat in the rebuttal affidavit.

3.3. It is stated that though the Plaintiff had filed replication to the written statement of the Defendants but the same was struck out of the record vide order dated 24.02.2023. It is stated that in the replication the Plaintiff had dealt with the WhatsApp chat, however the said pleading is not on record. However, this proves that Plaintiff had notice of the Defendant’s reliance on the WhatsApp chat and ought to have dealt with it in its evidence affidavit as this would be a plea covered by Issue Nos. (a), (c) and (d) as well.

3.4. It is stated that by way of the rebuttal affidavit the Plaintiff seeks to prove the following points: (i) the meeting of 20.09.2021 between the parties, wherein the Defendant No.3 allegedly extended threats to the Plaintiff to forfeit the earnest money paid by the Plaintiff; (ii) the surrounding circumstance in which the WhatsApp chat dated 21.09.2021 was sent by the Plaintiff to the Defendant No.3; and (iii) that there was no concluded agreement between the Plaintiff and the Defendants on

21.09.2021 to modify the Agreement to Sell dated 27.06.2021.

CS(COMM) 557/2022 Page 2 of 9

3.5. It is stated that the Plaintiff has not moved any formal application or given any reason whatsoever as to why rebuttal affidavit is required to be led in the present matter.

3.6. It is stated that the matter is at the advance stage where the Plaintiff has already concluded his evidence, and thereafter, the Defendants have also concluded their evidence after examining three witnesses.

3.7. It is stated that the Plaintiff has already Cross-examined the Defendants’ witness i.e., ‘DW-1’ (Mr. Raman Sethi) on the aspect of WhatsApp chat which is sought to be introduced in the rebuttal affidavit.

3.8. It is stated that contentions raised by the Plaintiff during oral arguments on 17.12.2024 was that since the onus to prove Issue No. (c) framed vide order dated 09.02.2024 which reads as “Whether the terms of the agreement to sell dated 27.07.2021 have been modified? OPD” is on the Defend