Deena Nath Tiwari v. Mazahir Hussain & Anr

order wherein it had said appellant has not them place sought to be cancelled whereas he had already done so, as is clear vide order dated 04.02.2005 which fact is also accepted by the first appellate court."

¶8Mr. Rajat Aneja, learned counsel for the appellant has argued that the suit of the plaintiff which was ex-parte could not have been dismissed by the trial court and by the Appellate Court by ignoring the unrebutted statement of the plaintiff. There is no substantial question of law involved in this plea for the simple reason that the court even in ex-parte Page 5of8 . J case has to appreciate the evidence adduced on the record while deciding the case on merits.

¶9Since cancellation of documents was sought by the plaintiff, in the absence of the document, the trial court rightly observed that though testimony of the plaintiff unchallenged but, disputed were not on record. Since the disputed were not produced proved in evidence as forged fabricated or false created by defendant No.l in his favour, the relief of declaration was rightly rejected trial court. There is no law that in an ex-parte case, testimony of the plaintiff has to be accepted and a suit has to be decreed. If testimony of the plaintiff does hot inspire confidence in the mind of the court and also court finds that documents which are the basis of the suit have not been produced on the record, court is within its right to ignore testimony of the plaintiff and dismiss the suit.

¶10It plaintiff to prove in evidence, which were allegedly filed by defendant no.l before the SDM. Documents were very much Page 6 of8 available in the file of the SDM where proceedings were going on and the plaintiff had to summon the file to prove original documents placed in the said file as forged and fabricated.

¶11Much is said by the counsel for the plaintiff that he was not required to prove the documents sought to be cancelled as he was not relying upon them nor aslcing any relief based oh said documents. The fact remains, alleged were the basis of the suit itself and the entire claim of the plaintiff and the prayer made was based on the disputed documents only.

¶12The appellate court rightly concurred that the trial court's finding that in the absence of the original or proof thereof as forged fabricated, the plaintiff had failed to prove its case and the suit was rightly dismissed.

¶13Under these circumstances, no substantial question of law can be formulated as suggested plaintiff in this appeal. All the questions as formulated in the appeal are questions of fact and do not raise any substantial question of law. Page 7of8

¶14Hence, Ifind no merits in the appeai; the same is accordinglydismissedin limine. (ARUNASURESH) JULY, 30 2009 vk Page 8of8

0,% HIGH COURT OF DELHI AT NEW DELHI Date of decision : 30^''July, 2009 DEENA NATH TIWARI Appellant Through : Mr. Rajat Aneja, Advocate Versus MAZAHIR HUSSAIN & ANR Respondents Through : Nemo. CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ? I U D G M E N T ARUNA SURESH. I. (Oral) CM APPL.10366/2009 (exemption) Exemption allowed subject to all just exceptions. Application stands disposed of RSA 99/2009 and CM APPL.10365/2009 Page 1 of8 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. U 1. Appellant (hereinafter referred to as 'Plaintiff) filed a suit for declaration and cancellation of documents, permanent and mandatory injunction against the , respondents (hereinafter referred to as 'Defendants') claiming himself to be the owner of. property bearing khasra No.421/306 in Village Chilla Saroda Banger, New Ashok Nagar, Delhi which he , allegedly purchased from Shri Dharamvir through GPA, Agreement to Sell, receipt a total consideration of Rs.6,500/- dated 4.12.1981. Plaintiff claims himself to be in exclusive possession ' of suit property since after its purchase. Plaintiff came to know through one Smt. Rajeshwari Pandey that a case titled as 'Smt Rajeshwari Pandey vs. Fazal Ahmed & Ors.' was pending before SDM, Preet Vihar wherein, defendant No.l Muzahir Hussain had filed certain forged and bogus like Agreement to Sell, Will, Receipt and GPA dated 7.9.1989 showing his ownership in respect of the suit property which he alleged to have purchased from defendant No.2 Arvind Bhandari. Page 2 of8 2. On receipt of this information, plaintif filed a suit seeking declaration cancellation of the said dated 7.9.1989 being false fabricated also declaration to the effect that no sale ever took place between plaintiff and defendant No.2 and that he never sold part of the property in favour of defendant No.2. Further, he sought relief of permanent injunction restraining the defendants from claiming any right in part of the property of the plaintiff with further relief of mandatory injunction seeking directions to the defendants to produce the documents on record and further, the said documents be returned to the plaintiff with the direction to destroy the same. 3. The said suit not contested by any of the defendants despite service. The trial court dismissed the suit of the plaintiff observing that in the absence of any document for which cancellation is sought, plaintiff had failed to prove as false and fabricated under the circumstances, the sole testimony of the plaintiff could not be relied upon in the absence of any Page 3 of8 o documentary evidence and also the opinion of the handwriting expert. 4. Plaintiff filed Regular Civil Appeal (RCA) in the court of Additional District Judge, Delhi. The said appeal also dismissed by the Appellate Court vide impugned order dated 1.4.2009. 5. The Appellate Court observed that though photocopies of the certified copies of the challenged documents were placed on record, that by itself was not sufficient to set aside the trial court judgment for the reason that plaintiff did not summon case file wherein the alleged had been filed and thus failed to prove that the documents under challenge were false fabricated documents. 6. Aggrieved by the said judgment of the Appellate Court, the Second Appeal under Section 100 CPC has been preferred by the plaintiff. 7. In this appeal, the plaintiff has tried to raise certain substantial question of law which are as unden- "a) Can sole, unrebutted unchallenged testimony given appellant/plaintiff in a ex-parte trial be ignored not considered an Page 4 of8 order be passed which is contrary and against the evidence placed on record by the appellant/plaintiff, by the Ld. Trial Court and upheld by the Ld. ADJ? b) Cou