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THE HIGH COURT OF DELHI AT NEW DELHI

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CM (M) 1086/2012

Date of Decision: 28.09.2012

MAHINDER SINGH

..... Petitioner

Through:

Mr.S.K.Bhaduri, Adv. with

Ms.Krishna Kumar, Mr.Kara

Kumar, Advs.

versus

CHARAN SINGH

..... Respondent

Through:

Mr.Mukesh Gupta, Adv. for

R8/MCD.

CORAM:

HON’BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

CM 17137/2012 (exemption)

Exemption allowed, subject to all just exceptions.

Application stands disposed of.

CM (M) 1086/2012 & CM 17136/2012

1. This petition is directed against the order dated 18.07.2012 of

ADJ, whereby the application of the petitioners, who were the

plaintiffs in the suit and the appellants before the Appellate Court in

RCA No. 18/2010, under Order XLI Rule 27 read with Section 151

CPC, was dismissed.

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2. Since a short controversy is raised in the instant petition and I

have heard the learned counsel appearing for petitioners as also the

respondent No. 8/MCD, no notice is required to be issued to the private

respondents.

3. The appellants had challenged the order of dismissal of their suit

by the Civil Judge before the Appellate Court of ADJ. There, they

filed an application under Order XLI Rule 27 read with Section 151

CPC for adducing additional evidence to place on record certified copy

of layout plan of MCD to substantiate that the private respondents have

encroached upon the public land at the T-Point, as reflected in the lay

out plan of the MCD, certified copy of which is sought to be placed on

record and proved.

4. It is noted that the learned ADJ has observed that PW1 Suresh

Kumar was cross examined on the sanctioned site plan as well as

layout plan, whereas, it is submitted by the learned counsel for the

petitioners, and rightly so, that no layout plan was available at that

time, and so, there was no cross examination of Suresh Kumar in this

regard. Since the controversy was only as to whether there was any

encroachment by the respondents at T-Point or not, the production of

this plan appears to be relevant and necessary for the just decision of

the case.

5. Having heard the counsel for the petitioners and learned counsel

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appearing for the respondent/MCD and on going through the impugned

order, I am of the view that the learned ADJ ought to have exercised

his discretion under Section 107 CPC read with Order XLI Rule 27

CPC to permit taking on record certified copy of the lay out plan.

These provisions confer wide discretion on the court to accept or not

the additional evidence. In the case of Mahavir Singh & Ors. Vs.

Naresh Chandra & Anr., 2001 (2) Civil Court Cases 708 (S.C.), the

Supreme Court observed as under;

6. The above judgment was referred to and relied upon in Ashok

Kumar Vs. Aman Kumar & Ors., 2010 (2) Civil Court Cases 012

(P&H), wherein it was observed as under:

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evidence when it requires for any substantial cause”.

7. In view of my above discussion, the impugned order is set aside.

The matter is remanded back to the court of ADJ with one opportunity

being afforded to the petitioners to prove the certified copy of the lay

out plan, with the liberty of an opportunity of rebuttal to the private

respondents.

8. With the above directions, the petition stands disposed of.

9. Dasti.

M.L. MEHTA, J.

SEPTEMBER 28, 2012/akb

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