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TMI Blog2011 (3) TMI 1841X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal existed and came to an end in 1966-67 by partition? OPP (iii) Whether business in the name of Punjab Glass Plywood Co. was HUF business of defendant No. 1? (iv) Whether the property No. 1050, Patel Gali No. 1 and 2, Gandhi Nagar is an HUF property? OPP (v) Whether the plaintiff is entitled to any share in the suit property, if so, what share? OPP (vi) Whether the plaintiff is entitled to a decree of partition of property by metes and bounds or by any other method? OPP (vii) Whether the suit has been filed within the period of limitation in view of the pleadings of the plaintiff? OPP (viii) Whether the suit has been properly valued for purpose of Court fees and jurisdiction and whether the appropriate Court fees has been affixed? OPP (ix) Whether the suit is not maintainable for want of Court fees? OPP (x) Relief. 4. It is stated that in the year 2008, the plaintiff had filed an application seeking amendment of the plaint which was allowed and thereafter the written statement to the amended plaint was filed by the defendants and the Court was pleased to appoint Mr. G.P. Thareja, as a Local Commissioner for the purpose of recording evidence. It is alleged in the application that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100, 125027, 963054, 153015, 137007, 64063, 968005, 241007, 241006, 845073, 569011, 194001, 771078 and 685031 issued by the Municipal Corporation of Delhi may be exhibited as Exhibit PW-1/5 and PW 1/23 respectively. My grandfather in the name of the HUF was carrying on business and was dealing with various persons and entities. Bill dated 17.2.1967 issued in favour of M/s Shori Lal Bhola Nath by M/s Jai Industries may be exhibited as Exhibited PW 1/24. Bill, dated 01.1.1963 issued in favour of M/s Shori Lal Bhola Nath by the Lyallpur Hardware Tin Mfg. Co. may be exhibited as Exhibit PW-1/25. Bill dated 24.4.1964 issued in favour of M/s Shori Lal Bhola Nath by M/s Satya Narain Vijay Kumar be exhibited as exhibit PW-1/26. In para 11. Copy of the Assessment orders dated 31.7.1970 for the assessment years 1964-1965, 1966-1967 and 1967-1968 may be exhibited as Exhibit PW-1/27, PW-1/28 and PW-1/29 respectively. In para 12. I along with the defendants thereafter carried out construction on the said property bearing No. DC/1050, Patel Gali No. 1-2, South Gandhi Nagar, Delhi-110031 from the funds received by the defendant No. 1 from his father Late Sh. Shori Lal. The construction on the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare in the HUF properties. 5. It has also been contended in the application that the plaintiff filed certain documents along with the affidavit, which were neither relied upon by the plaintiff nor has any permission been sought by him from the Court for placing the said documents on record. 6. It is stated that prior to the amendment of the CPC on 01.7.2002, Order 13 Rule 2 CPC was in existence. It permitted the Court to grant permission to a party to take documents on record on being shown 'sufficient cause' and since this provision has been deleted, no additional document could be taken on record. Thus, in a nutshell, the prayer of the defendants in the application is twofold; firstly, for expunging the contents/averments/paras in the affidavit as stated hereinabove, which are stated to be beyond pleadings and; secondly, seeking a direction that additional documents filed by the plaintiff along with the affidavit by way of evidence may not be taken on record. 7. The plaintiff has filed the reply to the application and contested the prayer of the defendant. It has been stated in the reply that the present application has been filed only with a view to delay the disposal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments which had been attached by the plaintiff along with his affidavit had not been filed earlier and were not even relied upon and therefore, by permitting to take the said documents on record at this belated stage without the permission of the Court and for which no provision exists in the CPC, would result in a serious prejudice to the defendants/applicants. 12. The learned counsel for the plaintiff has contested both these submissions of the learned senior counsel for the defendants. 13. So far as the question of averments made in the affidavit are concerned, it has been contended by the learned counsel that the question of relevancy and admissibility of documents as well as of a fact is to be determined by the learned Local Commissioner who is an experienced retired District Judge and therefore, competent to deal with the objection of the defendants. It is further stated that this will be of course subject to the orders of the Court at the time of final hearing, if the defendants still feels aggrieved from the same. 14. It is stated by him that whatever objections the defendants /applicants has, they can be recorded and adjudicated at the time of final arguments. 15. I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay in the disposal of the suit itself. 19. It may be pertinent here to refer to the portion which has been highlighted in the aforesaid Rule which clearly mandates that if a party has any objection then such an objection can be got recorded before the Local Commissioner and the question can be decided ultimately by the Court at the stage of final argument. The whole purpose and the scheme of the aforesaid order is to ensure that there is minimum loss of time in recording the evidence of the parties as it cause incalculable delay in the disposal of the suit. 20. In the instant case also, I feel that since the learned Local Commissioner who had been appointed was an experienced and seasoned Retired Additional District Judge and if at all there was any averment made in the affidavit by the petitioner which was beyond pleadings to which the defendants/applicants had any objection, the same could be taken by him before the learned Local Commissioner and got recorded rather than filing the present application. 21. I fully agree with the contention of the learned senior counsel for the defendants that as a matter of law, a fact which is not pleaded cannot be proved and therefore, eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the provision of Order 13 Rule 2 permitting a party to file documents belatedly on showing good cause has been done away with but that does not mean that the documents cannot be relied upon or filed by a party. The only thing which is to be done by the applicants/defendants in such a contingency where a belated reference or reliance to a document is made is to get his objections recorded before the Local Commissioner. It may be pertinent here to refer to the judgment of our High Court in the case titled Rajasthan Financial Corp. v. Pukhraj Jain AIR 2001 Raj 71(73), wherein it has been held that even though a document may be exhibited still the question as to whether it has been rightly exhibited or not can be decided by the Court at the stage of final disposal. 25. On this score, even if the documents are filed belatedly by the plaintiff along with the affidavit, the same can be dealt with by the defendants/applicants by raising objections before the learned Local Commissioner, if it has any, rather than trying to delay the recording of cross examination. 26. For the aforesaid reasons, I am of the considered opinion that the application which has been filed by the defendants /app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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