Lal Pratap Singh v. Kanwar Lal & Ors

V.B.GUPTA, J. mw

* HIGH COURT OF DELHI : NEW DELHI CM (M) No. 1010/2010 & CM No. 13901/2010 (stay) % Judgment reserved on: 5th August, 2010 Judgment delivered on: 9th August, 2010 Sh. Lal Pratap Singh S/o Shri Dev Narain Singh R/o B-4/55, Nand Nagari, Delhi ….Petitioner. Through: Mr.Sree Narain Jha, Advocate. Versus 1. Sh. Kanwar Lal S/o Sri Ram Kumar R/o B-5/385, Nand Nagari Delhi 2. Smt. Devi W/o Sri Amar Singh R/o B-5/385, Nand Nagari, Delhi. 3. S.H.O. P.S.Nand Nagri Delhi ….Respondents Through: None Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. This petition under Article 227 of the Constitution of India has been filed by the petitioner praying to set aside orders dated 30.11.2009 & 21.1.2010, passed by Commercial Civil Judge, Delhi. 2. Brief facts of this case are that, petitioner purchased the suit property from respondent No.1 on the basis of Registered General Power of Attorney and Agreement to Sell, after paying entire sale consideration to him. Since then, petitioner is in possession. 3. In 2009, some anti-social elements wanted to dispossess the petitioner from the premises, on the basis of false documents executed by respondent No.1, in favour of respondent No.2. Petitioner lodged an FIR. When respondents did not succeed in their illegal designs, they filed civil suit on the basis of forged documents. 4. It is contended by learned counsel for petitioner that order of the trial court closing evidence of petitioner is illegal since trial court did not permit the petitioner to file certain documents. These documents were not in power and possession of the petitioner, as original of the same are in custody of police. After receiving them on 30.10.2009, petitioner filed the same in the Court. As such application under Order 8 R. 1A of Code of Civil Procedure (for short as "Code") for filing these valid and genuine documents is very essential for decision of the suit, but trial court wrongly dismissed the same. 5. This application under Order 8 R. 1A of the Code was dismissed by the trial court, vide impugned order dated 30th November, 2009, relevant portion of it reads as under; "So far the application U/o 8 Rule 1-A CPC is concerned, the defendant has simply submitted that the documents were not in power and possession of defendant no.2, but in the entire pleadings, the defendant has not explained in whose possession these documents were lying. Even nothing has been explained regarding the possession of the document in the written statement. At the stage of defence evidence, production of these documents will definitely bring the plaintiff in surprise that the defendant has placed these documents on record and the stand of the plaintiff would definitely effect. In the absence of any explanation, I found no ground to allow the application as the application has been moved just to delay the case and the same is hereby dismissed. Previous entire cost paid. Since no witness has been examined by defendant despite many opportunities, hence DE closed." 6. Thereafter, petitioner filed application under Section 151 of the Code, seeking permission to lead evidence, which was dismissed, vide impugned order dated 21.1.2010. Relevant portion of this order read as under:- "Perusal of the record shows that the case was fixed for DE on 27/07/09 after closing PE of the plaintiff for 22/08/09. On 22/08/09 no DW was present and case was adjourned with cost of Rs.500/- for 09/09/09. On 09/09/09 again no DW was present and further cost of Rs.1,000/- was imposed on the defendant for non examination of witness and last and final opportunity was granted to the defendant to lead DE for 07/10/09. On 07/10/09 no DW was examined and only affidavit of DW was filed, but no advance copy of affidavit was supplied to the plaintiff despite specific direction and again last and fina