Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 442 (GAU)

Bankim Behari Das v. MD. Hasen Ali

2010-06-18

T.NANDAKUMAR SINGH

body2010
JUDGMENT T. Nandakumar Singh, J. 1. The core question to be answered in the present revision petition is as to whether the learned trial court who has recorded the statement of the concerned PW can correct typographical mistakes in the examination-in-chief in the form of affidavit on the application filed by the witness himself. 2. Heard Mr. A.K. Purkayastha, learned (sic) for the (sic) Defendant. 3. Learned Counsel for the Petitioner, in order to answer the core question in negative, strenuously urged that the examination-in-chief of PW in the form of affidavit is not a pleading and, therefore, it cannot be corrected by the court who recorded the statement of PW by exercising his/her power under order 6, Rule 17 read with Section 151 of the Code of Civil Procedure. He further urged that the witness himself being neither Plaintiff nor Defendant in the civil suit is a stranger in the proceeding and, therefore, ho cannot file the application for correcting typographical mistake in his examination-in-chief in the form of affidavit to the court. 4. For deciding the core question involved in this case, it is not required to discuss the pleadings of the parties in detail, it would be suffice to mention that the examination-in-chief of one Md. Hasen Ali (PW3) was filed in the form of affidavit in compliance with Sub-rule (1) of Rule 4 of order 18 of the Code of Civil Procedure and PW3. Md. Hasen Ali was also allowed to be cross-examined by the Defendants. During the course of cross-examination it had been discovered that there were some typographical mistakes in his affidavit (examination-in-chief) and, accordingly, PW3 himself filed an application for correcting the said typographical mistakes which had been cropped up in his affidavit (examination-in-chief). The said typographical mistakes are: his name Md. Hasen Ali had been wrongly typed as "Md. Hussain Ali"; and also in other part of the affidavit, the word "Defendant " had been wrongly typed as ' Plaintiff' in the sentence which read as follows: the Plaintiff has got no title in the suit land. As stated above, PW3 who was examine as witness of Plaintiff stated that the sentence should be read as 'the Defendant has got no title in the suit land', instead of ' Plaintiff has got no title in the suit land'. 5. As stated above, PW3 who was examine as witness of Plaintiff stated that the sentence should be read as 'the Defendant has got no title in the suit land', instead of ' Plaintiff has got no title in the suit land'. 5. Order 5, Rule 18 of the Code of Civil Procedure (sic) provides as to how evidence shall be taken in the appealable cases and it provides that evidence of each witness shall be taken in the language of the court in writing by or in presence and under personal direction and superintendence of the judge and/or from the dictation of the judge directly to a typewriter or mechanically in the language of the court in presence of the judge. 6. Further, order 18, Rule 7 provides that the evidence taken under Section 138 of the Indian Evidence Act shall be in the form prescribed by Rule 5 and shall be read over and signed, and as occasion may require, interpreted and corrected as if it were evidence taken down under that rule. For easy reference, relevant portions of Rule 4, 5, 6 and 7 of Order 18 Code of Civil Procedure (sic) are reproduced hereunder: 4. Recording of evidence. - (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. (2) . . . (3) . . . (4) . . . 5. How evidence shall be taken in appealable cases. - In cases in which an appeal is allowed, the evidence of each witness shall be, - (a) taken down in the language of the court, - (i) in writing by, or in the presence and under the personal direction and superintendence of, the Judge, or (ii) from the dictation of the Judge directly on a typewriter; or (b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the court in the presence of the Judge. 6. When deposition to be interpreted. - Where the evidence is taken down in language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence as taken down in writing shall be interpreted to him in the language in which it is given. 7. Evidence under Section 138. - Where the evidence is taken down in language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence as taken down in writing shall be interpreted to him in the language in which it is given. 7. Evidence under Section 138. - Evidence taken down under Section 138shall be in the form prescribed by Rule 5 and shall be read over and signed and, as occasion may require, interpreted and corrected as if it were evidence taken down under that rule. 7. On conjoint reading of Rules 4, 5, 6 and 7 of order 18 of the Code of Civil Procedure it is clear that the examination-in-chief of a witness shall be in the form of affidavit and copy thereof shall be supplied to the opposite party by the party who called him for evidence and also the evidence of the witness shall be recorded in the language of the court; and in case the evidence is recorded it shall be read over and signed. If occasion arises, the learned Judge shall interpret the recorded statement of the witness and correct it as if it were the evidence taken down under the rule in his presence. 8. In the present case, as stated above, the examination-in-chief of PW3 was in the form of affidavit in compliance of the provisions of Rule 4, order 18 of the Code of Civil Procedure and PW3 was allowed to be cross-examined by the Defendant; and as there were typographical mistakes as mentioned above in the affidavit of PW3, he filed the said application for correction of the said mistakes. 9. As discussed above, the learned trial court has power to correct the typographical mistake in exercise of its power under order 7, Rule 18 (sic) of the Code of Civil Procedure. However, this Court is accepting the assertion of Mr. A.K. Purkayastha, learned Counsel for the Petitioner that the said affidavit of PW3 is not the part of the pleadings and, therefore, trial court cannot(sic) Code of Civil Procedure. 10. It is fairly well settled that the inherent power of the court under Section 151 of the Code of Civil Procedure is in addition and complementary to the power expressly conferred under the Code of Civil Procedure. 10. It is fairly well settled that the inherent power of the court under Section 151 of the Code of Civil Procedure is in addition and complementary to the power expressly conferred under the Code of Civil Procedure. The court exercises its inherent power to make the order ex debito justitiae. The power under Section 151, Code of Civil Procedure cannot be exercised for passing an order in infraction of the prescribed procedure. 11. The procedure is handmaid not mistress of law. The procedure is only a channel to administer law and it should not be instrumental in obstructing justice and rule of procedure should always be utilized for advancing justice, not for defeating the cause of justice. The Apex Court in Jai Jai Ram Manohar Lal v. National Building Material Supply AIR 1969 SC 1267 (para 5 of the SCC p. 1269) observed that: The order passed by the High Court cannot be sustained. Rules of procedure are intended to be handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensed for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment the amendment may be allowed if it can be made without injustice to the other side. In Amulakchand Mewaram v. Babulal Kanalal 35 Bom. LR 569:AIR 1933 Bom. 304, Beaumont, CJ, in delivering the judgment of the Bombay High Court set out the principles applicable to cases like the present and observed: ...the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought is the name of a non-existent person or whether it is merely a misdescription of existing persons. If the former is the case, the suit is a nullity and no amendment can cure it. If the former is the case, the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie, there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the court should always allow an amendment where any loss to the opposing party can be compensated for by costs. In Amulakcand Mewaram's case 35 Bom. LR 569:AIR 1933 Bom. 304 a Hindu undivided family sued in its business name. It was not appreciated at an early stage of the suit that in fact the firm name was not of a partnership, but was the name of a joint Hindu family. An objection was raised by the Defendant that the suit as filed was not maintainable. An application to amend the plaint, by substituting the names of the three members of the joint family for the name of the family firm as Plaintiffs, was rejected by the court of first instance. In appeal the High Court observed that a suit brought in the name of a firm in a case not within order 30, Code of Civil Procedure being in fact a case of misdescription of existing persons, leave to amend ought to have been given. 12. Mr. A.K. Purkayastha, learned Counsel for the Petitioner strenuously urged that the impugned order dated 5.2.2010 which was passed under order 7, Rule 17 is liable to be set aside inasmuch as the learned court has no power under order 6, Rule 17 of the Code of Civil Procedure to pass the impugned order dated 5.2.2010 for allowing the application filed by PW3 for correcting the said typographical mistake in his affidavit (examination-in-chief). 13. It is also equally well settled that a mistake in quoting a wrong provision of the Code does not make the order illegal. When the authority passes an order which is within its competence it cannot fail merely because it purports to be made under a wrong provision, if it can be shown to be within its power under any rule. When the authority passes an order which is within its competence it cannot fail merely because it purports to be made under a wrong provision, if it can be shown to be within its power under any rule. The validity of an order should be judged on a consideration of its substance, not its form, regarding this settled position of law it would be suffice to refer to the decisions of the Apex Court in (1) Ram Manohar v. State of Bihar AIR 1966 SC 740 , (2) Hukumchand Mill v. State of M.P. AIR 1964 SC 1329 and (3) Amritsar Improvement Trust v. Baldeo Indrajit (1972) 1 SCC 165 /170. 14. In view of the above discussion, the submission of Mr. A.K. Purkayastha, learned Counsel for the Petitioner that the impugned order dated 5.2.2010 is liable to be dismissed as it was passed under order 6, Rule 17, Code of Civil Procedure is not sustainable inasmuch as the mistake in quoting a wrong provision of the Code does not make the order illegal and validity of an order should be judged on consideration of its substance and not in its form and also the learned court has power under order 7, Rule 18 read with Section 151 of the Code of Civil Procedure. For the foregoing discussion there is no material error in passing the impugned order dated 5.2.2010. Accordingly, this revision petition is devoid of merit and hereby dismissed. Petition dismissed.