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2008 DAILYLAW 1345 (DEL)

Raj Khanna v. Mira Chawla

2008-03-28

Shiv Narayan Dhingra

body2008
JUDGMENT This application (IA No. 13210/07) has been made on behalf of the Plaintiff under Order 7 Rule 14(3) read with Section 151 CPC with a prayer that the Plaintiff be allowed to place on record the certified copies of (a) the eviction petition, affidavit of the tenant u/s 25(B) (4) of the DRC Act, (b) Counter affidavit of late Shri Baij Nath Khanna to the said affidavit. (c) deposition of the late Shri Baij Nath Khanna as AW-3 and (d) deposition of the plaintiff as AW-4 in the said eviction petition. It is submitted that these documents were material to adjudicate the issue between the parties. The Defendant had taken the plea in the WS that notice of termination of tenancy was never served upon Shri Baij Nath Khanna, which is totally contrary to the stand of late Shri Baij Nath Khanna taken in the eviction petition filed under Delhi Rent Control Act. The Plaintiff could not file these documents before as the rent case was very old and termination notice dated 13th February, 1981 was served on deceased Shri Baij Nath Khanna at that time. She had appraised her Counsel of all the facts of this case but she could not recollect about the notice. It is only during the evidence that on repeated enquiries by her Counsel, she could recall that she had deposed as a witness in some legal proceedings initiated against the tenant in Tis Hazari Court for eviction. The Plaintiff could not recollect the exact contents and only gave approximate time of her deposition and thereafter her advocate applied for certified copies of the eviction petition filed by Plaintiffs late husband and these were obtained. It is stated that these certified copies were obtained from judicial record and there was no question of fabricating any evidence and their genuineness cannot be disputed by the Defendant. They should be allowed to be placed on record. The other application (IA No. 13211/07) is for seeking leave of the Court to summon witness from the Court to prove the record. 2. The applications are opposed by the Counsel for the Defendants, on the ground that the Plaintiff has already undergone cross examination and Defendants would not be in a position to cross examine her on the testimony given by her in earlier case, which she seeks to prove and this would cause prejudice to the Defendant. 2. The applications are opposed by the Counsel for the Defendants, on the ground that the Plaintiff has already undergone cross examination and Defendants would not be in a position to cross examine her on the testimony given by her in earlier case, which she seeks to prove and this would cause prejudice to the Defendant. It is also stated that the plea taken by the Plaintiff about not been able to remember the fact of a notice having been served and disclosing to the Counsel about her having deposed sometime in the year 1985 was a far fetched plea and could not be believed. 3. A Division Bench of this Court in FAO(OS) No. 213/2007 observed as under: Having gone through the records and also on consideration of the facts that the suit is at an early stage inasmuch as only the issues have been framed and, therefore, in our considered opinion, no prejudice would be caused to the respondent if the said documents are allowed to be taken on record, at this stage subject to all just exceptions and also subject to payment of cost. Accordingly, we allow the appeal to the aforesaid extent with a direction that the aforesaid documents, which are referred to and mentioned in this order would be taken on record subject to just all exceptions and also subject to cost of Rs.5,000/-which shall be paid by the appellant to the respondent within two weeks from today. The respondent shall be entitled to question genuineness and correctness of the said documents and the appellant herein will be equally entitled to prove and establish that the said documents are genuine and correct. In terms of the aforesaid order the appeal stands disposed of. 4. Considering the fact that the documents sought to be placed on record by the Defendant are from judicial record, therefore, no issue of genuineness is involved. I consider that the applications of the Plaintiff deserve to be allowed subject to payment of cost to the Defendants. I, therefore, allow the application subject to cost of Rs.5,000/-to be paid to the Defendants. In case Defendants feel a necessity of further cross examination of the Plaintiff after the documents are proved in accordance with law, the Defendants would be at liberty to make appropriate application. The Plaintiff is also given liberty to examine the necessary witness to prove the documents. In case Defendants feel a necessity of further cross examination of the Plaintiff after the documents are proved in accordance with law, the Defendants would be at liberty to make appropriate application. The Plaintiff is also given liberty to examine the necessary witness to prove the documents. With these directions, the applications stand disposed of. CS(OS) No.593/2004 List the matter before the Joint Registrar on 14th May, 2008 for recording of cross-examination of PW-2.