Kamla Prasad Roy v. Binod Kumar Roy — 1988 DIGILAW 393 (PAT)

JUDGMENT Mookherij, J.- This civil revision under Section 115 of the Code of Civil Procedure is directed against a part of the order dated 22.4.1988 of Sri Rajesh Kumar, Subordinate Judge IX, Patna in Title Suit No. 105 of 1984 whereby and whereunder, the prayer of the opposite party-defendant no. 1 in the original suit to recall P. W. 21, D. W. 5 and D. W. 10 for further cross-examination has been allowed. 2. The grievance of the petitioners, inter alia, is that P. W. 21 (petitioner no. 1) was fully cross-examined for nine days and discharged, but after a couple of months an application under Section 151 of the Code of Civil Procedure was filed to recall him for further cross-examination respecting a Vakalatnama filed by him in C. R. No. 1155 of 1986. A similar prayer was also made to recall either two witnesees without disclosing the purpose for the same and the court without applying its mind, allowed it under Section 151 of the Civil Procedure Code which is bad in law. 3. The maintainability of the application was not only raised at the stage of admission by filing a caveat petition but also at the hearing stage and it has been further asserted by defendant no. 1 that the Court after due consideration of the prayer passed the order, which cannot be questioned in this Court under the provision of Section 115 of the Civil Procedure Code. 4. The parties in their petitions have mentioned about certain other matters. We are however, not concerned with the same for the purpose of disposing of this application. 5. Numerous cases of various High Courts and Supreme Court have been cited on behalf of the parties at the time of hearing; we, are however, concerned with the limited questions: (a) whether the court was competent to pass the order impugned under the provisions of Section 151 of the Civil Procedure Code? and (b) whether the order passed could be construed to be "a case decided" with in the purview of Section, 115 of the Civil Procedure Code? 6. The original suit is pending since long and it appears that from time to time directions were issued by this Court to expedite the trial. and (b) whether the order passed could be construed to be "a case decided" with in the purview of Section, 115 of the Civil Procedure Code? 6. The original suit is pending since long and it appears that from time to time directions were issued by this Court to expedite the trial. There is also no controversy that the witness sought to be recalled for further cross-examination were examined and cross-examined in the trial court for several days and while allowing the prayer the trial court awarded a cost of Rs. 1000/-againstthe defendant-opposite party. 7. Mr. Ram Suresh Roy, the learned counsel appearing for the petitioners, in the first instance, has submitted that the order impugned could not have been passed under the provisions of Section 151 of the Civil Procedure Code and that also without any valid reason. On the other hand, defendant no. 1 opposite party who bas argued in person has submitted that the present application is not maintainable on the grounds that this court cannot interfere with the order impugned under Section 115 of the Civil Procedure Code as the same does not fan within the definition of any case which has been decided and secondly, some of the parties of the suit having not been made party, the order bas become final as against them and therefore, in either view of the matter, the application is not maintainable. 8. Section 115 of the Code of Civil Procedure empowes the High Court, in cases. where no appeal lies, to satisfy itself on three matters, (a) that the order made by the subordinate court is within its jurisdiction, (b) that the case is one in which the court ought to exercise its jurisdiction, (c) that in exercising the jurisdiction the court has not acted illegally, that is, in breach of some provision of law or with material irregularity that is by committing some error of procedure in couree of the trial which is material in that it may have affected the ultimate decision. Therefore, if an erroneous decision of a subordinate court results in its exercising jurisdiction not vested in it by law pr failing to exercise jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out. Therefore, if an erroneous decision of a subordinate court results in its exercising jurisdiction not vested in it by law pr failing to exercise jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out. If a subordinate court has jurisdiction to make the order it made and bas not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, than the High, Court has no power to interfere. But if on the other hand, it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself on jurisdiction so vested then the power of interference under Section 115 Civil Procedure Code becomes operative. Reference, in this connection, may be made to the case of Chaube Jagdish Prasad and another vs. Ganga Prasad Chaturvedi (A. I. R. 1959 S. C. 492). 9. It has, therefore, to be seen whether in the facts and circumstances of the case, the court had acted in accordance with law or not because, the order impugned has been questioned on the ground that it could not have been passed in exercising the power of Section 151 of he Civil Procedure Code inasmuch as when there is no right of appeal and no remedy available to the party against that order, it could be revised if the conditions laid down in Section 115 of the Civil Procedure Code are satisfied. 10. The Code of Civil Procedure is not exhaustive arid this being the position, the court may where the circumstances require, it could act ex debito justitiae and do what is necessary for the administration of justice. The subordinate court has, however, no unrestricted jurisdiction to pass orders under Section 151 of the Civil Procedure Code but it must proceed according to the principles of justice, equity and good conscience and where it acts illegally or with material irregularity the High Court has jurisdiction to interfere under Section 115 of the Code of Civil Procedure provided it is shown that in addition to existence of illegal exercise of jurisdiction, the order under challenge is "a case decided". Reference may be made to the case of Govind Ram and another vs. Major A. U. John (A.I.R. 1939 Allahabad page 668). 11. In the instant case, the order of the court allowing prayer of the oppoiste party defendant has been challenged on the ground stated above. There cannot be any controversy that the trial court in the interest of justice and fair play could permit a party to recall a witness (a) for further cross-examination. There is no time limit for this, meaning thereby, a party can make a prayer even after a witness is discharged at a later stage. It is for the court to be satisfied whether it was for the interest of justice or not. In this connection, I would like to dispose of a point raised on behalf of the petitioner. It has been submitted that the witnesses who were sought to be recalled has been cross-examined at great length and with a view to haras them at a late stage, without any reasonable ground, the prayer was made which ought not have been accepted by the trial court. So far as this branch of the argument is concerned, it may be pointed out that the urgency or necessity of recalling a particular witness (s) depends upon various circumstances. A party intending to recall a witness cannot be compelled to disclose the purpose for which the recall was sought for. But at the same time he has to satisfy the court that in the facts and circumstances of the case it is necessary. In the case in hand two "applications were filed for recall three of the witnesses discharged after cross-examination. The trial court, after hearing the parties, allowed the prayer. It, thus, cannot be said that without any consideration in a mechanical way, the prayer was al1owed. The trial court can entertain an application of either of the party for the purpose of further cross-examination of a witness or witnesses and grant such opportunity under Section 151 of the Code of Civil Procedure, there being no other provisions in the Code to meet the situation. This opportunity to a party to recall witness for examination, cross-examination or re-examination cannot be governed by Or. 18, R. 17. This opportunity to a party to recall witness for examination, cross-examination or re-examination cannot be governed by Or. 18, R. 17. Because, under Order 18 Rule 17 of the Code of Civil Procedure, the power to recall a witness already examined in given to the court and not to a party. In this connection, reference may be made to a decision reported in A. I. R. 1966 Andhra Pradesh page 295). 12. A case has, however, been sought to be made out that even if it accepted that the court below pass an order of the present nature under Section 151 of the Code of Civil Procedure, the effect of the same will be that of "a case decided" and therefore, this Court can interfere with it to consider its propriety. 13. Thus, the next point that falls for consideration is whether the order passed could be taken to be "a case decided" within the meaning under Section 115 of the Code of Civil Procedure. The expression "case" is not limited in its import to the entirety of the matter in dispute in an action. The expression 'case' is a word of comprehensive import; it includes a civil proceedings and is not restricted by any thing contained in Section 115 of the Code to the entirety of the proceeding in a civil court. A case may be said to be decided, if the court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of the Code of Civil Procedure. In this connection, reference may be made in case of Baldeo Das Shivlall and another vs. Filmistan Distributors (India) and other (A. I. R. 1970 S. C. 406) and some other cases reported in A. I. R. 1964 S. C. page 497, A. I. R. 1970 S. C. page 406, A. I. R. 1977 S. C. page 397, A. I. R. 1983 S. C. page 462, A. I. R. 1966 S. C. page 153 and A. I. R. 1973 S. C. page 76. 14. In the light of the guiding principle laid down by the Supreme Court, the order can be revised only if it suffers from an infirmity of error of jurisdiction. 14. In the light of the guiding principle laid down by the Supreme Court, the order can be revised only if it suffers from an infirmity of error of jurisdiction. In this case, by the order impugned, it cannot be said that the court had adjudicated for the purpose of the suit some right or obligation of the parties in controversy and therefore in any view of the matter the order cannot be construed as "a case decided" within the meaning of Section 115 of the Code of Civil Procedure. Reference, in this connection, may be made to a Patna decision reported in A.I.R. 1972 Patna page 499, wherein a number of decisions of different Courts including Supreme Court bad been considered. In other words, the order under challenge, is not of such a nature which can be said to fall within the term 'case decided'. 15. It is, thus, obvious that the trial court had a jurisdiction to pass appropriate order on the prayer of the opposite party-defendant no. 1 for recall of the witnesses under Section 151 of the Civil Procedure Code, the order, therefore, cannot be said to be without jurisdiction. Even if, it were held to be illegal, which I do not think to be so, for the reasons given above, the impugned order cannot be held to be without jurisdiction. Merely because a court has passed an erroneous or illegal order it cannot be entertained under Section 115 of the Code of Civil Procedure. 16. There is also much force in the contention of the opposite party that some of the parties to the suit, having not been made party the application is Dot maintainable since the order under challenge has become final as against them. 17. Thus, I do not find any merit in this application. The result is, that the application is dismissed. However, in the circumstances of the case, there will be no order as to costs.