ROHIT CHHABRA Vs. SHRI KAUSHAL TYAGI

JUDGEMENT

(1.) The revision is against the order directing the defendant to make a discovery of the document which is referred to in elaboration in the written statement. Copy of the written statement has been produced on direction by this Court along with an application CM No. 14545-CII of 2013. The application is allowed and the written statement is taken on record. In the written statement the defendant has contended that "Ultimately the plaintiff came on 30.4.2006 and writing was executed between the parties vide writing dated 30.4.2006, duly signed and acknowledged by both the parties and duly signed by the witnesses which contents are reproduced as under." The petitioner has produced the whole of the details of contents of the document in writing dated 30.4.2006. The contents of the document run to two pages. It is not the contention of the defendant that the recitals were drawn from the memory. Evidently the document is in the custody of the defendant and the Court has found reason to cause the production of the document, since the same is relevant for the disposal of the case.

(2.) Learned counsel for the petitioner now states that the document is not in his custody and the plaintiff is at liberty to rely on secondary evidence. When the document is shown to be in the custody of the adversary, it shall be lawful at all times for a party to rely on secondary evidence in terms of Section 65. It is a facilitative provision and does not exhaust remedies open under law, for, in this case the defendant has made reference to the document in his written document which is relevant for disposal of the case and the same is not produced in spite of a direction from the Court. The legal consequences of such non-compliance ought to follow. I cannot accept the bald contention that the document is not in the custody of the defendant-petitioner. It behaves on the defendant also to make a disclosure of how the party made a reference to the document with elaborate details in the written statement. If such a disclosure is not made, it only means that the defendant is trying to conceal an important fact and obstruct the course of justice for the Court to assess the truth. The consequences of non-compliance are detailed under Order 11 Rule 21 that includes power of the Court to direct the defence to be struck off. The revision has been moved before such compliance. The Court below is at liberty to adopt the procedure as set out in law. The revision petition is dismissed with the above observations.