$~42
*
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: April 27, 2017
+ CM(M) No.238/2017
AMRISH
AGARWAL TRADING
AS MAHALAXMI PRODUCT ..... Petitioner
Through: Mr.Akhil Sibal, Senior Advocate
instructed
by Mr.S.K.Bansal,
Mr.Ajay Amitabh Suman
and Mr.Veerendra
Mr.Ajay Amitabh Suman
and Mr.Veerendra
Sinha,
Advocates.
versus
M/S VENUS HOME APPLIANCES PVT LTD .....
Respondent
Through: Mr.R.K.Aggarwal and Ms.Parul
Singh,
Advocates.
CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT (Oral)
CM(M)
No.238/2017
1.
The petitioner has invoked the jurisdiction of this
Court under Article
227 of the Constitution of India assailing the order dated 23rd January, 2017 whereby the
learned Trial Court has dismissed the application filed by the petitioner (who
is defendant in case bearing TM No.1111/2016) under Order XVIII Rule 17 read
with Section 151 of Code of Civil Procedure for recalling of DW-3 Sh.Vinod
Sindhwani to produce the original documents.
2.
Mr.Akhil Sibal, learned Senior
Counsel for the petitioner has assailed the order dated 23rd January, 2017 on the following
grounds:-
CM(M) No.238/2017 Page 1
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(i) Civil
Suit for perpetual injunction was filed by the respondent/plaintiff on 9th December, 2002 wherein the
issues were settled on 21st April, 2008.
The plaintiff’s evidence was
closed on 21st January, 2014.
(ii)
DW-3 Sh.Vinod Sindhwani was examined as defence
witness on 8th
August, 2016 wherein, during his cross examination,
he was question about the original invoices to which he replied that the record
being old has been destroyed, hence he was unable to produce.
(iii)
After the defendant evidence was
closed on 8th August, 2016, DW-3 Sh.Vinod Sindhwani could manage to trace out the
original record, photocopies of which have already been filed in the Trial
Court.
(iv)
Final arguments in the case have
not commenced so far and soon after the original record was traced out, the
application under Order XVIII Rule 17 CPC was filed for taking on record the
additional affidavit with the original documents.
(v)
Learned Trial Court has dismissed
the application without considering that the petitioner/defendant was not
bringing on record any new material but was producing the original documents,
carbon copies/photocopies of which have already been filed.
(vi)
Production of original document
and that too which were asked to be produced during cross examination of DW-3,
does not amount to filling up the lacuna in the case of defendant.
(vii)
Learned Senior Counsel for the
petitioner/defendant has relied upon
K.K.Velusamy
vs. N.Palanisamy (2011) 11 SCC 275 in support of
his contentions.
3. Mr.R.K.Aggarwal, learned counsel for the
respondent, while relying upon the decision in the case of K.K.Velusamy vs. N.Palanisamy (2011) 11 SCC 275, M/s. Bagai Construction Thr. its
Proprietor Lalit Bagai vs.
CM(M) No.238/2017 Page 2
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M/s.Gupta Building Material Store AIR 2003 SC 1849 and Raunaq
Automotive Components Ltd. vs. J.P.S.Kanwar in FAO (O) 524/2015 decided on 16th September, 2015, has raised the
following contentions:-
(i)
As per the decision of Supreme
Court in K.K.Velusamy vs. N.Palanisamy and of Division
Bench of this Court in Raunaq
Automotive Components Ltd. vs. J.P.S.Kanwar the power has to be
exercised sparingly in appropriate
cases and is not intended to be used to fill up the omissions in the evidence
of a witness who has already been examined.
(ii)
The provisions of Order XVIII
Rule 17 CPC is not intended to enable the parties to recall any witnesses for
their further examination-in-chief or cross examination or to place additional
material or evidence which was not produced at the appropriate stage.
(iii)
The provisions of Section 151 CPC
cannot be used for reopening the evidence or for recalling the witnesses.
(iv)
The evidence sought to be
produced was not the kind of evidence which was not previously known to the
petitioner or which could not have been produced by him despite due diligence.
Rather it was the petitioner who has already placed the photocopy/carbon copy
of such record.
(v)
Once DW-3 Sh.Vinod Sindhwani has
deposed before the Court that the original record has already been destroyed,
then how he could trace out that record subsequently if he could not do so at
the appropriate stage.
(vi)
The case is at the stage of final
arguments and purpose of filing this application at such a belated stage is
only to delay the trial.
(vii)
The application filed alongwith
additional affidavit of DW-3 was nothing but an attempt to cover up the
negligence and lacuna, hence has rightly been dismissed.
CM(M) No.238/2017 Page 3
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4.
I have considered the rival contentions
and perused the case law cited by the parties.
5.
The limited question arising for
consideration in this appeal is whether the original documents, carbon
copies/photocopies of which had already been placed on record by the defendant,
could be permitted to be brought on record after the defence evidence was
closed and DW-3 in his cross examination has stated that the record being old,
and account books are destroyed after 8-10 years, he was unable to produce the
same.
6.
For purpose of disposal of this
application, it is necessary to refer to the statement of DW-3 recorded on 8th August, 2016, which is as
under:-
‘DW-3 : Sh.Vinod Sindhwani S/o
Sh.C.S.Sindhwani, age 63 years, R/o 240, Chukhuwala, Bhagat Singh Marg,
Dehradun (Uttrakhand); Education – B.A.; Occupation –Business of Electrical
Goods in the name of S.S.Enterprises.
On SA
I tender
my evidence by way of affidavit Ex.DW3/A. It bears my signatures at points A
& B. I have seen photocopies of invoice No.467 part of Ex.DW1/2(colly.) and
photocopies of invoices no.419 and 4164 part of Ex.DW1/5 (Colly.) and carbon
copies of the same with defendant counsel now shown and say that goods detailed
therein were received by me from defendant vide those invoices. Original/carbon
copy of invoice No.1412 given Ex.DW4/B in affidavit of witness has neither been
filed nor produced so no such exhibit given to its photocopy. Photocopy of
invoice no. 529 was earlier part of Ex.DW1/2 (Colly.) but today neither its
original nor carbon copy has been shown to the witness.
XXX by Sh.R.K.Aggarwal, ld.
Counsel for plaintiff.
CM(M) No.238/2017 Page 4
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I have
not brought the original invoices which I had received. I had entered the
purchases vide aforesaid invoices in my books of accounts. After 8 or 10 years,
the books of accounts were destroyed due to which I am unable to produce the
books of accounts containing entries of aforesaid invoices. It is incorrect to
suggest that the aforesaid invoices are bogus and/or fictitious. I paid in cash
for purchase of goods vide aforesaid invoices.
It is incorrect to suggest that I am deposing
falsely.
Sd/-
|
Sd/-
|
RO&AC
|
ADJ(Central)-01 Delhi
|
09.08.2016’
|
7.
Mr.Akhil Sibhal, learned Senior
Counsel for the petitioner has submitted that he does not want to re-examine DW-3
but only wants to produce him for producing the original documents (total five
documents), and for further cross examination. Since there had not been any
inordinate delay or gap from the date the defence evidence was closed and date
when the application for production of original documents was filed by the
petitioner/defendant, the petitioner/defendant may be permitted to place on
record the original documents.
8.
The original documents, which
have been traced out and copy of which have already been placed on record of
Trial Court, have been listed in para 5 of the application under Order XVIII
Rule 17 CPC and are as under:-
(i)
Invoice No.4637 dated 20.08.1995
with cash book entry
(ii)
Invoice No.529 dated 16.01.1988
with ledge entry
(iii)
Invoice No.419 dated 03.12.1986
with cash book entry
(iv)
Invoice No.1472 dated 01.03.1990
with cash entry
(v)
Invoice No.4164 dated 11.12.1993
CM(M) No.238/2017 Page 5
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9. In a
recent decision reported as Ram Rati
vs. Mange Ram & Ors. AIR
2016 SC
1343 the question
that came up
for consideration before
the
Supreme Court was whether a
witness can be recalled under Order XVIII
Rule 17 CPC for further
elaboration of aspects left out in evidence already
closed. After discussing the earlier decisions in the case of Vadiraj
Naggappa Vernekar (Dead) through L.R.s vs. Sharadchandra Prabhakar
Gogate and
(2009) 4 SCC 410, K.K.Velusamy vs.
N.Palanisamy (2011) 11
SCC 275 (decision in K.K.Velusamy’s case has been
relied upon by both the
parties herein), it was held in paras
14 and 15 of the report as under:-
“14. The rigour Under Rule 17,
however, does not affect the inherent powers of the court to pass the required
orders for ends of justice to reopen the evidence for the purpose of further
examination or cross-examination or even for production of fresh evidence. This
power can also be exercised at any stage of the suit, even after closure of
evidence. Thus, the inherent power is the only recourse, as held by this Court
in K.K. Velusamy (supra) at paragraph-11, which reads as follows:
11. There is no specific
provision in the Code enabling the parties to reopen the evidence for the
purpose of further examination-in-chief or cross-examination. Section 151 of
the Code provides that nothing in the Code shall be deemed to limit or
otherwise affect the inherent powers of the court to make such orders as may be
necessary for the ends of justice or to prevent the abuse of the process of the
court. In the absence of any provision providing for reopening of evidence or
recall of any witness for further examination or cross-examination, for
purposes other than securing clarification required by the court, the inherent
power Under Section 151 of the Code, subject to its limitations, can be invoked
in appropriate cases to reopen the evidence and/or recall witnesses for further
examination. This inherent power of the
CM(M) No.238/2017 Page 6
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court is
not affected by the express power conferred upon the court Under Order 18 Rule
17 of the Code to recall any witness to enable the court to put such question
to elicit any clarifications.
15. After surveying the various
principles stated by this Court on Section 151 from 1961, in K.K. Velusamy
(supra), they have been succinctly summarized as follows under paragraph-12:
xxx
a)
Section 151 is not a substantive provision which creates or confers any power
or jurisdiction on courts. It merely recognises the discretionary power
inherent in every court as a necessary corollary for rendering justice in
accordance with law, to do what is "right" and undo what is
"wrong", that is, to do all things necessary to secure the ends of
justice and prevent abuse of its process.
(b)
As the provisions of the Code are not exhaustive, Section 151 recognises
and confirms that if the Code does not expressly or impliedly cover any
particular procedural aspect, the inherent power can be used to deal with such
situation or aspect, if the ends of justice warrant it. The breadth of such
power is coextensive with the need to exercise such power on the facts and
circumstances.
(c)
A court has no power to do that which is prohibited by law or the Code,
by purported exercise of its inherent powers. If the Code contains provisions
dealing with a particular topic or aspect, and such provisions either expressly
or by necessary implication exhaust the scope of the power of the court or the
jurisdiction that may be exercised in relation to that matter, the inherent
power cannot be invoked in order to cut across the
CM(M) No.238/2017 Page 7
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powers conferred by the Code or
in a manner inconsistent with such provisions. In other words the court cannot
make use of the special provisions of Section 151 of the Code, where the remedy
or procedure is provided in the Code.
(d)
The inherent powers of the court being complementary to the powers
specifically conferred, a court is free to exercise them for the purposes
mentioned in Section 151 of the Code when the matter is not covered by any
specific provision in the Code and the exercise of those powers would not in any
way be in conflict with what has been expressly provided in the Code or be
against the intention of the legislature.
(e)
While exercising the inherent power, the court will be doubly cautious,
as there is no legislative guidance to deal with the procedural situation and
the exercise of power depends upon the discretion and wisdom of the court, and
in the facts and circumstances of the case. The absence of an express provision
in the Code and the recognition and saving of the inherent power of a court, should
not however be treated as a carte blanche to grant any relief.
(f)
The power Under Section 151 will have to be used with circumspection and
care, only where it is absolutely necessary, when there is no provision in the
Code governing the matter, when the bona fides of the applicant cannot be
doubted, when such exercise is to meet the ends of justice and to prevent abuse
of process of court.”
10.
The proceedings under Article 227
of the Constitution of India is an extraordinary discretionary constitutional
remedy to advance justice and not to thwart it.
CM(M) No.238/2017 Page 8
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11.
Production of the original
documents, copies of which have already been placed on record, after the
original could be traced out by the witness and that too before the final
arguments could commence may be necessary for proper adjudication of the case.
The petitioner/defendant through DW-3 would be tendering the original documents
(five in number), copies of which have already been filed. It is the
respondent/plaintiff who would get the opportunity to cross examine the witness
on those documents. In fact, had the witness not deposed that the old record is
destroyed after 8-10 years, on request, even the learned Trial Court would have
given an opportunity to the witness to make another attempt to trace out the
old record/original documents and then continue with further cross examination.
12.
The
civil suit for
injunction was filed
in the year
2002 wherein
plaintiff’s evidence was closed in the year 2014. Thereafter the
defendant has concluded its evidence by 8th August, 2016. Thus, filing of an application before even the final
arguments could commence, cannot be termed to be a long gap so as to attribute
any motive to the petitioner/defendant that the purpose of filing the
application is to delay the disposal of this old case.
13. Apprehension of the respondent/plaintiff that the application, if
allowed may have the effect of delaying disposal of the trial, can be taken
care of by this Court by subjecting the petitioner to the conditions so as to
ensure that on the next date of hearing fixed before the learned Trial Court
not only the witness i.e. DW-3 Sh.Vinod Sindhwani is present with the original
documents but even the cross examination is completed by learned counsel for
the respondent/plaintiff on the same day. At the same time, the
respondent/plaintiff can be compensated by awarding cost.
CM(M) No.238/2017 Page 9
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14. In view of the above discussion, the impugned order dated 23rd January, 2017 passed by the
learned Trial Court dismissing the application of the petitioner/defendant with
cost of ₹10,000/- is liable to be set aside and the same is hereby set aside.
15.
The petitioner/defendant is
allowed to produce DW-3 Sh.Vinod Sindhwani alongwith original documents for
tendering the original documents in evidence and further cross examination on
the next date of hearing fixed before the learned Trial Court, which is stated
to be 27th May, 2017, subject to payment of cost of ₹1 lac.
16.
After the original documents
(referred in paragraph No.7), copies of which have already been placed in the
Trial Court Record, are tendered, learned counsel for the respondent/plaintiff
shall be at liberty to cross examine DW-3 on the said documents.
17.
The cost of ₹1 lac shall be paid
by the petitioner/defendant to learned counsel for the respondent on or before
27th May, 2017 before commencement of further examination of DW-3.
18.
It is made clear that if the cost
is not paid on or before 27th May, 2017 before tendering the original documents and commencement of
cross examination of DW-3, this petition shall stand dismissed.
19.
However, if learned counsel for
the respondent/plaintiff is not willing to accept the cost, in that case, the
learned Trial Court shall direct the petitioner/defendant to deposit the cost
by 29th May, 2017 with Pragati Institute for Severally and Profoundly Mentally
Retarded (ISPMR), Female Wing, Asha Kiran Complex, Sector-1, Rohini,
Delhi-110085 (payment of
cost should be made by cheque in favour of “H.O./D.O. for School &
Home Mentally Retarded Children” in Account No.394501010013010). The
opportunity to cross examine DW-3 shall be availed by the
CM(M) No.238/2017 Page 10
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respondent/plaintiff on 27th May, 2017. The proof of deposit the cost shall be deposited in the
Court by 30th May, 2017.
20.
The parties shall not seek any
adjournment on 27th May, 2017 except that if Presiding Officer happens to be on leave on
that date, in that case, the matter shall be taken on the next working day.
21.
The petition is allowed, subject to the above
directions.
22.
A copy of this order be sent to
the concerned Trial Court for information and compliance.
23.
As prayed, a copy of the order be
also given dasti to learned counsel for the parties.
CM No.7745/2017 (Stay) & CM
No.7746/2017 (for summoning of record) Dismissed
as infructuous.
PRATIBHA RANI, J.
APRIL 27, 2017
‘st’
CM(M) No.238/2017 Page 11
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