* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date ofJudgment: 28.07.2011 + CM(M) No. 1000/2010 & CM No.13690/2010 (Stay) M/S LOTUS TRANS TRAVEL PVT. LTD. & Another ........ Petitioner s Through: Versus SH. DOBBY HUGHES & Another Through: CORAM: Mr. L.K. Singh, Advocate. .......... Respondents Mr. Hemant Malhotra and Mr. Sharad Malhotra" Advocates. HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral) 1 The order impugnsd before this Court is the order dated 20.02.2010 whereby certain paragraphs i.e. paragraphs No. 9 & 12 to 16 of the addibonal affidavit filed by the defendant in rebuttal had been ordered to be deleted from his affidavit by way of evidence. 2 Record shows that the present suit has been filed by the plaintiff seeking recovery of a sum of Rs.3A2A98/- from the CM (M) No.l000/2010 Page 1 of4 ·,• --'" -.-, ---,-i Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified defendant; the plaintiff was engaged in the plumbing work at the project of the defendant. After the pleadings were completed, issues were framed on 15.12.1999. They read as follows 1. Whether this Court has no territorial jurisdiction to try the present suit? OPD 2. Whether the billing was not done as per the terms of the contract between the parties? OPD 3. Whether the plaintiffs are entitled to recover the amount of Rs.2,76,207.86 P claimed in the last and Vllth bill from the defendants? OPP. 4. Whether the plaintiffs are entitled to interest charges, if so at .what rate and on what amount? And for what period? OPP 5. Relief. 3 Issue No. 2 has placed the onus upon the defendant. Defendant had been directed to lead evidence in the first instance. He had completed his evidence by examining one witness. His evidence was closed on 06.08.2003. The plaintiff thereafter led his evidence which , was closed on 21.07.2004. On 15.07.2006 permission had been granted to the defendant to lead evidence in rebuttal. Affidavit by v/ay of evidence which is the subject matter of this impugned order had emanated from there; it had been filed by way of evidence in rebuttal by the defendant. 4 The whole dispute in the present suit relates to 7 bills; the defendant in his written statement had admitted the receipt of the first four bills; he had also admitted that with regard to 5"' and 6"" bills, discrepancies which were found in those bills had been CM (M) No. 1000/2010 Page 2 of 4 -Ad rectified; with regard to the 7th bill, he had disputed the quantum in the bill but the receipt of the bill had not been disputed. The evidence by way of affidavit filed in rebuttal in para 9 is in consonance with this pleading of the defendant in his written statement. He has admitted that photocopy of 7th bill was received by him on 05.03.1997 along with letter Ex. PW-1/14. The direction to delete this paragraph is thus infirm; para 9 being in conformity and in consonance of the pleadings of the defendant, it is permitted to be read as part of the affidavit by way of evidence in rebuttal of the defendant. However paras 12 to 16 of the affidavit have set up a new case; in paras 12 to 16 the defendant in rebuttal has stated that 5th and 6th bills (Ex. PW-1/11 & Ex. PVl- 1/12) were never supplied to them and he came to lr.now about the existence of these bills only after the filing of the suit; it has further been pleaded that the plaintiff had in connivance with the Engineer prepared these bills; as such he is not liable to pay any amount. These contentions now raised in paras 12 to 16 are contrary to the pleadings of the defendant whereas in the written statement he had categorically admitted t!1at 5th and 6th bills had been received by him and -::he discrepancies therein had been removed. 5 The law is very clear; there can be no evidence which is CM (M) No.l000/2010 Page 3 of 4 ' '''! beyond the pleadings; since paras 12 to 16 of the affidavit are beyond the pleadings of the defendant, they were rightly ordered to be struck off from the affidavit of the defendant. The impugned order is accordingly modified partially. Fresh affidavit by way of evidence in terms of this order be now filed by the defendant within two weeks with advance copy to the counsel for the plaintiff. 6 Petition i.s disposed of in the above INDERMEET KAUR, J. JULY 28, 2011 a - --, CM (M) No.l000/2010 Page 4 of4