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2004 DIGILAW 621 (GAU)

Raghunath Choudhury v. Rameshwar Rai

2004-12-10

H.N.SARMA

body2004
JUDGMENT H.N. Sarma, J. 1. By this application under Article 227 of the Constitution of India the petitioner has challenged the order, dated 12.2.2003 passed in Misc (J) Case No. 1/03 arising out of Title Suit No. 16/2003 by the learned Civil Judge (Senior Division) No. 3, Kamrup, Gauhati. 2. Heard Mr. S.P. Roy, learned counsel for the petitioner. Although a caveat has been filed being Caveat No. 1480/04, however, none appears on behalf of the caveator when the matter was taken up. 3. Before the present petition, the petitioner filed CRP No. 162/03 under Section 115 CPC. While the said revision petition came up for hearing on 27.7.04, the following order was passed and the revision petition was dismissed accordingly. "Mr. D. Nandi, learned counsel for the petitioner does not want to press this revision petition, in view of the amendment of Section 115 of the CPC. The revision petition is dismissed as not pressed." 4. Upon dismissal of the aforesaid revision petition, as not pressed, the present petition under Article227 of the Constitution of India challenging the same impugned order, has been filed by the petitioner. 5. Facts necessary for disposal of this writ petition may be summarised as follows - One Rameshwar Rai as plaintiff instituted Title Suit No. 16/03 in the Court of the learned Civil Judge (Senior Division) No. 3, Guwahati against the present petitioners impleading them as defendants. The suit was for declaration of right, title, interest and confirmation of possession as well as for permanent injunction upon the suit property against the defendants. In the said suit the plaintiff also filed an application under order 38 , rule 1 and 2 read with Section 151 CPC praying for a direction to furnish security of Rs. 12,00,000 and in the meantime pass an order of conditional attachment of Rs. 12,00,000 lying deposit in the Court and also an application for temporary injunction restraining the opposite parties from realising rent directly from the defendant Nos. 3, 9 and 10. The said application for injunction was registered as Misc (J) Case No. 1/03. 12,00,000 and in the meantime pass an order of conditional attachment of Rs. 12,00,000 lying deposit in the Court and also an application for temporary injunction restraining the opposite parties from realising rent directly from the defendant Nos. 3, 9 and 10. The said application for injunction was registered as Misc (J) Case No. 1/03. Upon notice being issued the defendant/petitioners without filing objection to the aforesaid Misc case or written statement in the suit, filed an application on 24.1.03 praying, inter alia, for calling the plaintiff deponent who has sworn the affidavit before the learned trial court in support of the injunction as well as petition for attachment before judgment and allow them to cross-examine him, as allegedly, according to the defendant, the plaintiff made false statement in the plaint. In the said application defendant also prayed for keeping in abeyance filing of the written objection as well as written statement in the meantime. Against this, the plaintiff also filed their written objection controverting the submissions of the defendants on 10.2.2003. 6. The learned trial court heard the aforesaid prayer of the defendant petitioner and by virtue of a long and elaborate order, dated 17.2.2003 rejected the prayer of the defendant-petitioner holding, inter alia, as follows: "Though the appellants have stated that the petitioners have made some false and fabricated statement in his plaint, but the O.Ps. have not yet submitted the written objection contesting the injunction petition. If the O.P. Nos. 1, 2, 3 and 7 are allowed to submit their written objection after cross-examination of the deponent, it will prejudice the plaintiff/petitioner . Under such circumstances the prayer for cross-examination of the deponent will be considered after submission of the written objection by the O.Ps." The aforesaid order is the subject-matter of challenge in this petition. 7. Mr. S.P. Roy, learned counsel for the petitioner has submitted that the aforesaid order dated 17.2.03 is without any jurisdiction and the learned trial court had no jurisdiction to allow cross-examination after filing the objection or completion of the pleading, inasmuch as, the plaintiff respondent made false statement in the petition praying for injunction and attachment before judgment. It is also submitted by Mr. Roy that the petitioner has got a right to have the plaintiff cross-examined before filing his objection. In support of his contention Mr. Roy has refers to the following judgments : 1. It is also submitted by Mr. Roy that the petitioner has got a right to have the plaintiff cross-examined before filing his objection. In support of his contention Mr. Roy has refers to the following judgments : 1. Berium Chemicals Ltd. and Anr. v. Company Law Board (Head Note "h"); 2. Rajeshwar Rabha v. Khagen Chandra Kalita and Ors. 1991 (2) GLJ 300; 3. Judgment and order dated 02.08.2001 passed in CRP No. 162/2001 (Inderpal Singh Sahani v. M/s Duars Transport (P) Ltd.]; and 4. Judgment and order dated 26.3.2002 passed in CRP No. 152/99 (M/s Jugeswar Poddar & Sons and Ors. v. Mahatma Prasad Singh) 8. Referring to the aforesaid decisions Mr. Roy has submitted that the learned trial court in passing the impugned order has committed jurisdictional error and accordingly prayed for setting aside the same. In the case reported in Berium Chemical (supra), it has been held, inter alia, as follows : "6. In our opinion, in a proceeding under Article 226 of the Constitution the normal rule is, as pointed out by this Court in State of Bombay v. Purshottam Jog Naik, AIR 1952 SC 317 , to decide disputed questions on the basis of affidavits and that it is within the discretion of the High Court whether to allow a person who has sworn an affidavit before it - as indeed Mr. Krishnamachari and Mr. Dutt have to be cross-examined or not to permit it. In exercise of its discretion the High Court has refused permission to cross-examine them. In such a case it would not be appropriate for this court while hearing an appeal by special leave to interfere lightly with the exercise of that discretion." 9. In view of the aforesaid, the decision of the Apex Court is of no help to the petitioner. In the case reported in Rajeshwar Rabha (supra) the prayer was made by the petitioner in that case to cross-examine the plaintiff only after filing his objection on receipt of notice from the court. Similarly, in Inderpal Singh Sahani (supra) the prayer for cross-examination was made after filing of the written statement with counter claim and objection. The case of M/s Jugeshwar Poddar (supra) cited by Mr. Roy, was decided under Section 115 CPC before coming into force of the Civil Procedure Code (Amendment) Act, 2002, which came into effect from 1.7.02. Similarly, in Inderpal Singh Sahani (supra) the prayer for cross-examination was made after filing of the written statement with counter claim and objection. The case of M/s Jugeshwar Poddar (supra) cited by Mr. Roy, was decided under Section 115 CPC before coming into force of the Civil Procedure Code (Amendment) Act, 2002, which came into effect from 1.7.02. The two other unreported decisions of this Court were also decided as per the pre-amended provision of Section 115 CPC. In the case of M/s Jugeshewar Poddar (supra) also this court held that it is absolutely within the discretion of the trial court to allow or reject a prayer for adducing evidence by affidavit. At para 11 of the said judgment this court held that the power of the Court to call the deponent for cross-examination is unfettered and wide and either party can invoke the same. By way of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), proviso to Section 115(1) has been substituted as follows : "Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings." 10. The impugned order challenged in the present petition being not maintainable under the amended provision of Section 115 CPC, the CRP No. 102/03 was not pressed and accordingly the same was dismissed on 27.7.04 by this Court as not pressed. The said order is again challenged under Article227 of the Constitution of India invoking the superintending power of this Court. Regarding constitutional provision under Article 227 of the Constitution of India the Apex Court in the case A. Venkata Subblah Naidu v. S. Chellappan and Ors., 2000(7) SCC 695 in dealing with the matter in which question arose about the maintainability of petition under Article 227against the order under Order 39, Rules 1 and 2 CPC, the Apex Court at para 22 has held as follows: "22. Now remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Now remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well-recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned Single Judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition," 11. In the instant case, the petitioner without filing his written statement in the suit and without filing objection against the application for injunction and attachment before judgment, has prayed for allowing him to cross-examine the plaintiff on the alleged ground that the plaintiff has made false statement therein. The learned trial Court, considering the submissions of the parties, by the impugned order dated 17.2.2003 came to a finding that the prayer for cross-examination of the plaintiff-deponent would be considered after submission of the written statement and the written objection by the opposite parties and by passing this order it cannot be said that the learned trial court has acted without jurisdiction as submitted by Mr. Roy. It has further been submitted by Mr. Roy that if the defendant could show from the cross-examination of the plaintiff/deponent that false statement has been made in the plaint, then the entire suit would be dismissed. This submission of the learned counsel for the petitioner cannot be accepted in view of the fact that if such a course is adopted then it would amount to dismissal of the suit before trial which Code do not permit. If the defendant has sufficient reason to substantiate his claim that the plaintiff made false statement, the same can be proved in the suit and cannot be permitted to be allowed before filing of the written statement. 12. In view of the aforesaid discussions, I do not find merit in this petition and accordingly the same is dismissed. If the defendant has sufficient reason to substantiate his claim that the plaintiff made false statement, the same can be proved in the suit and cannot be permitted to be allowed before filing of the written statement. 12. In view of the aforesaid discussions, I do not find merit in this petition and accordingly the same is dismissed. However, in the circumstances of the case, there shall be no order as to costs.