* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
27. 01.2014 + CM(M) 1358 OF2013SMT PREETI ARORA Through: ..... Petitioner Mr. Somdutt Kaushik, Adv. versus SH ANIKET SUBHASH KORE ..... Respondent Through: Ms. Anu Narula, Adv. CORAM: HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE NAJMI WAZIRI1 This is a petition challenging the order of the Additional District Judge disallowing the petitioner’s application to bring on record print outs of certain e-mails allegedly exchanged between the parties. The Hon’ble Supreme Court had transferred the case to the Karkardooma Courts at Delhi with a direction that the petition be disposed off as expeditiously as possible, preferably within 9 months from the date of framing of issues. CM(M) 1358/2013 disallowing the petitioner’s application was that after pleadings of the parties had been completed and issues were framed on 25.05.2013 and evidence of the petitioner have been completed on 20.09.2013 the documents were sought to be brought on record. It was objected to on the ground that the documents existed much earlier before the reply of the petitioner to the divorce petition had been filed, that they are not new documents, and that the application was filed simply because there has been a change of counsel and therefore a change of opinion.
2. According to the Trial Court, permission to bring the said documents on record at this stage would cause prejudice to the petitioner who may not have the opportunity to place his case in respect of the documents. On 16.12.2013 the proceedings before the trial court in HMA No.352/2012 had been stayed. The respondent husband has sought to challenge the said order on the following grounds:- the divorce petition was filed in April 2011 and the petitioner wife had all along known the case against her. Reply to the petition makes no whisper of this correspondence nor were these documents adduced to the reply or at any stage prior to the evidence of the respondent husband which has now been completed. Counsel appearing for the respondent/husband also drew attention of the Court to the fact that although on 26.11.2013 and 29.11.2013, 9.12.2013, 13.12.2013 and 14.12.2013, the petitioner/wife did not appear before the Trial Court, no medical certificate was presented before the Court on 9.12.2013 stating that she was unwell. She contends that the plea of illness is belied by the fact that the affidavit was sworn on 12.12.2013 before the Oath Commissioner appointed by the High Court. Evidently she was in a position to move about on 12.12.2013, yet she did not appear before the Court on 13.12.2013 and 14.12.2013. This shows that the petitioner is trying to delay and frustrate the proceedings in the trial court on one pretext or the other. Counsel for the respondent Ms.Anu Narula contends that however the law requires that the documents relied upon are required to be filed at the appropriate stage i.e. along with the written statement which means that they have to be filed before the replication is filed or otherwise with the permission of the Court at the time of framing of issues but definitely before evidence starts. She further contends that the copies of e-mail which are sought to be brought on record were exchanged in the petitioner’s affidavit of evidence filed on 09.07.2013 and tendered on 22.07.2013. However no application was filed for taking on record the said correspondence as required under Order VII rule 14. Such application was filed only on 24.10.2013. The plea that the delayed filing of the e-mail was on account of the fact that the respondent came to know about this lapse only when the file was sent by her counsel during her cross-examination is untenable. She further contends that the documents sought to be adduced now as a part of the evidence in any case not as per the requirement of Section 65B of the Indian Evidence Act, 1872. Counsel for the petitioner on the other hand says that the proceedings pending before the trial court are in the context of a socially beneficial legislation concerning the marital relationship between the parties. Therefore the courts would always take a view which would advance the cause of justice and a strict interpretation which would cause irreparable loss and disadvantage to the wife ought not to be taken.
3. Section 65 of the Indian Evidence Act prescribes the conditions for admissibility of physical records which inter alia requires a certificate to be adduced along with the purported evidence.
4. Sub-section 4 reads as under:Section 65 sub section (4) 4. In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say;(a) Identifying the electronic record containing the statement and describing the manner in which it was produced ; (b) Giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) Dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
5. From the facts as mentioned above the following position emerges that the petitioner had full knowledge of the case against her by as alleged in the divorce petition from April, 2011. The trial court was directed on 01.3.2012 to complete the proceedings preferably within 9 months from the date of framing of issues which was done on 23.05.2013. Therefore, the divorce petition has to be decided by 23.02.2014. Apart from the reason that the application for bringing on record the print outs of the e-mails had been occasioned only on account of change of counsel, no other reason has been provided. In the opinion of this Court, that itself would not be a sufficient reason in any case. To seek indulgence of a Court to accept additional documents under Order VII rule 14, the party seeking to produce documents must satisfy the Court that the said documents were earlier not within the party's knowledge or could not be produced at the appropriate time in spite of due diligence.1 It has not been the case of the petitioner/wife that the documents were not within her power or that the same could not be produced despite exercise of due diligence. There is no whisper of such alleged correspondence either in the reply to the divorce petition or list of documents or list of reliance which was filed by the petitioner wife. These documents are not new and were evidently in the knowledge of the petitioner wife prior to the filing of the divorce petition. Permitting the same to be brought on record now would have its own cascading effect 1 Gold Rock World Trade Ltd. v Veejay Lakshmi Engineering Works Ltd. (2007 (143) DLT113 in the form of an amendment of the written statement/reply, a rejoinder thereto issues have framed fresh evidence to be led, etc. This would unnecessarily delay the proceedings and also defeat the scheme that the CPC spells out for an equitable framework and schedule with which the parties have to comply and the courts ought to conduct proceedings before it.
6. For the aforesaid reasons, this Court is not persuaded to interfere with the impugned order. The petition is dismissed as being without any merit. NAJMI WAZIRI (JUDGE) JANUARY27 2014 mm