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2010 DIGILAW 561 (GAU)

Sushil Kumar Dey v. Bimal Chandra Dutta

2010-08-10

ANIMA HAZARIKA

body2010
JUDGMENT Anima Hazarika, J. 1. By separate two revision petitions the Petitioners herein as Plaintiff has assailed two orders dated 18.6.2009 passed in Title Suit No. 38 of 2006 by the learned Munsiff No. 1 Jorhat whereby and whereunder Respondent herein was allowed to exhibit Miscellaneous (N.J.) Case No. 352/05 directing to take steps for re-examination of DW2 and by another order passed in Miscellaneous (J) No. 18 of 2009 refused to restore the Miscellaneous (N.J.) Case No. 352/2005 holding that if the Respondent wants to exhibit the challan he can file it in the main suit and can exhibit the same through DW2 who is allowed to stand as a witness in the main suit to give evidence on Miscellaneous (N.J.) case No 352/2005 which are under challenge invoking power under Article 227of the Constitution of India. 2. The factual matrix of the cases being analogous the same are taken up together for disposal. 3. For better appreciation of the cases the brief facts are narrated herein below in order to enable the court effectually and completely to adjudicate upon and settle the questions raised in these two revision petitions - The Petitioner herein as Plaintiff brought a suit being Title Suit No. 5 of 2003 against the Respondent herein on the file of the learned Civil Judge (Sr. Div.) Jorhat seeking a decree for eviction of the Defendant from the suit premises and for recovery of Khas possession and for a decree of the arrear rent of Rs. 10,500, also for compensation. The said suit was filed on the ground of default and to raise a new construction on the said suit land inclusive of the land of his brother Sunil Kumar Dey where for permission was obtained to undertake the construction. During the pendency of the suit the pecuniary jurisdiction of the civil courts were enhanced and accordingly the suit was transferred to the learned Munsiff No. 1 Jorhat and the suit was renumbered as title suit No. 38 of 2006 which is pending for disposal. 4. During the pendency of the suit the pecuniary jurisdiction of the civil courts were enhanced and accordingly the suit was transferred to the learned Munsiff No. 1 Jorhat and the suit was renumbered as title suit No. 38 of 2006 which is pending for disposal. 4. The Respondent herein as Defendant in the suit submitted the written statement contending, inter alia, that there was rent agreement between the Plaintiff landlord and the Defendant tenant for two years but he started paying monthly rent in court because of non-issuing of rent receipts by the landlord though he had been paying rent regularly and in time within 10th day of the month next following and thereby denied that he is a defaulter and other contentions pleaded in the plaint are denied. 5. The rent for the month of October 2005 was deposited in the court after taking permission from the court being Miscellaneous (N.J.) Case No. 352/2005 where by the learned trial court vide order dated 10.11.2005 directed to submit the challan in the court on 22.11.2005 by depositing the rent to treasury, which, however, was dismissed on 22.11.2005 for non-submission of challan in the court as directed. Thereafter the Defendant had filed an application under Section 151 of the Code of Civil Procedure, 1908 (the Code) vide Petition No. 204 of 2008 for restoration of Miscellaneous (N.J.) Case No. 352/2005 praying for accepting the Challan No. 8 dated 17.11.2005 which was dismissed vide order dated 28.3.2008 holding that the Miscellaneous (N.J.) Case No. 352/2005 has already been exhibited in Title Suit No. 38 of 2006 and by accepting the challan would cause prejudice to the Plaintiff. 6. Being aggrieved and dissatisfied with the order passed on 28.3.2008 the Defendant approached this Court by filing a writ petition under Article 226 of the Constitution of India being WP(C) No. 2413 of 2008 which came up for consideration on 12.2.2009 and the court after hearing the parties passed the following order 12.2.2009: Heard Mr. N. Choudhury, learned Counsel for the Petitioner assisted by Ms. P. Goswami as well as Mr. S. Dasgupta, learned Counsel for the Respondents. N. Choudhury, learned Counsel for the Petitioner assisted by Ms. P. Goswami as well as Mr. S. Dasgupta, learned Counsel for the Respondents. As agreed to by the learned Counsel for the parties, this writ petition is disposed of provided that the Petitioner will be at liberty to file appropriate application before the learned trial court seeking exhibition of order passed in Miscellaneous (N.J.) Case No. 352/05 by learned Munsiff No. 1 Jorhat in Title Suit No. 38 of 2006 following the due procedure. In the event of making such application by the Petitioner, the learned trial court shall consider the same in accordance with the law. 7. With the order in hand the Respondent once again filed an application being Miscellaneous (J) case No. 18 of 2009 arising out of Miscellaneous (N.J.) Case No. 352/2005 before the learned trial court praying to accept the challan already filed by restoring the case against which an objection was filed. The Respondent has filed another application in the title suit under Section 138 of the Evidence Act read with Section 151 of the Code being Petition No. 434/2009 dated 13.3.2009 seeking reexamination of DW2 with reference to filing of challan in Miscellaneous (N.J.) Case No. 352/2005 which came up for consideration on 18.6.2009 before the learned trial court and the learned trial court accepted both the applications and passed the impugned orders as indicated above which are under challenge before this Court. 8. Heard Mr. A. Das, learned Counsel appearing for the Petitioner. Also heard Mr. N. Choudhury, learned Counsel for the Respondent. 9. Raising the question of scope and power under Article 227 of the Constitution of India in the matter related to this case Mr. Das, learned Counsel, appearing for the Petitioner would urge that allowing to exhibit Miscellaneous (N.J.) Case No. 352/2005 which had already been exhibited in the suit as Exhibit G(25) and directing to take steps for reexamination of DW2 who had already been examined and cross-examined thereby exceeded its jurisdiction not vested in it by law requires interference under provisional jurisdiction. 10. Mr. 10. Mr. Das, has further contended that a conjoint reading of two orders would disclose that admittedly the Miscellaneous (N.J.) No. 352/2005 was dismissed for non-submission of challan against which an appeal is provided under Section 8 of the Assam Urban Areas Rent Control Act, 1972 but the Respondent had approached the court under writ jurisdiction, which, however, ordered to proceed with due procedure in the event if application is filed, meaning thereby that the court did not direct to fill up the lacunae but the learned trial court allowed to exhibit the challan by re-examination of DW2, which if allowed to stand, would be erroneous assumption of jurisdiction which require interference being without jurisdiction. 11. Mr. Das, would contend that order 18, Rule 17 of the Code read with Section 138 of the Evidence Act would reveal that the court may at any stage of a suit recall any witness who has been examined and may, (subject to the law of evidence for the time being in force) put such questions to him as the court thinks fit, whereas under Section 138 of the Evidence Act, the court may direct for re-examination on a matter referred to in cross-examination for explanation and nothing more than that and, therefore, the orders passed on 18.6.2009 cannot be sustained under the law. 12. In support of his contentions, the learned Counsel for the Petitioner has referred the following decisions: 1. Vaidraj Nagappa Verneker (dead) through L.Rs. v. Sharadachandra Prabhakar Gogate (2009) 4 SCC 410 . 2. Assam Brook Limited v. Borgong Catholic Hospital 2008 (1) GLT 792. 3. Usman Goni and Ors. v. Abdul Khaliaue and Ors. 2008 (3) GLT 179. 4. Samiran Paul v. Anubha Banik and Ors. 2007 (4) GLT 484. 5. Management of Glaxo India Ltd. v. State of Assam and three Ors. (1995) 2 GLR 224. Vaidraj Naggappa (supra), relates to recall of witness after examination is completed as envisaged under Order 18, Rule 17 of the Code. The Apex Court has held that Order 18, Rule 17 is not intended to be used to fill up omissions in the evidence of a witness who has already been examined, which supports the case of the Petitioner. Vaidraj Naggappa (supra), relates to recall of witness after examination is completed as envisaged under Order 18, Rule 17 of the Code. The Apex Court has held that Order 18, Rule 17 is not intended to be used to fill up omissions in the evidence of a witness who has already been examined, which supports the case of the Petitioner. In Assam Brook Ltd. (supra), this Court has held that there is no absolute prohibition that once Plaintiff has failed to produce documents at the time of presentation of plaint, he is precluded from doing so at the later stage in the suit subject to leave granted by the court. In Usman Goni (supra), though written statement filed beyond the period of 90 days was allowed by the trial court, was subsequently rejected on Plaintiffs prayer. The court held, rejection amounts to review of its own order. The reference has been made to impress upon the court that once an order rejecting the application is passed, the court cannot review its own order subsequently. There is no dispute about the aforesaid proposition. Samiran Paul (supra) relates to Section 5(4) of the Assam Urban Areas Rent Control Act, 1972, with reference to Section 141 of the Code, wherein this Court has held that an application under Section 5(4) of the Act, 1972 is not a proceeding within the meaning of Section 141 of the Code relating to a question of default which should be decided in the suit. There is no dispute in the abovementioned analogy. Management of Glaxo India Ltd. (supra), relates to Order 18, Rule 17 of the Code wherein, this Court has held that the parties should not be allowed to recall a witness to fill up the lacunae under the pretext of recall which is also applicable in the instant case. 13. In reply to the contentions raised by the learned Counsel for the Petitioner, Mr. 13. In reply to the contentions raised by the learned Counsel for the Petitioner, Mr. N. Choudhury, learned Counsel appearing for the Respondent would urge that the power to call a witness for reexamination is inherent power of the court in order to give substantial justice to the parties and, therefore, contended that the matter which could not be exhibited, if allowed to be exhibited at a later stage by calling the witness for re-examination would not prejudice to the Petitioner s interest, thereby supported the orders passed by the learned trial court, which, he submits do not require to be interfered with in exercise of power under revisional jurisdiction. 14. In support of his contentions, the learned Counsel for Respondent has referred the following decisions: 1. Surya Dev Rai v. Ramchander Rai and Ors. (2003) 6 SCC 675 . 2. Smt. Priya Bala Ghose and Ors. v. Bajranglal Singhania and Anr. AIR 1992 SC 639 . In Surya Dev Rai (supra), the Apex Court has held that amendment of Section 115(1) of the Code would not affect the jurisdiction under Articles 226 and 227 of the Constitution of India. There is no ambiguity of the above proposition of law. Priya Bala Ghosh (supra), relates to tender of rent which is held to be not a condition precedent. The decision is not applicable in the instant case. 15. Considered the submissions made by the learned Counsel appearing for the parties along with the pleadings made in the revision petition. The only question requires to be answered in this revision petition as to whether the learned trial court is justified in allowing to exhibit the Miscellaneous (N.J.) Case No. 352/2005 which was already exhibited being Exhibit G (25) directing to take steps for re-examination of DW2 at the stage of argument of the suit along with further observation that if the Defendant wants to exhibit the challan, he is allowed to do so through DW2 as indicated in the order passed in the title suit. 16. To answer the question this Court is required to go back to the order dated 10.11.2005 passed in Miscellaneous (N.J.) Case No. 352/2005 whereby the learned trial court allowed the Defendant to deposit the rent for the month of October 2005 amounting to Rs. 1,500 in the court directing to submit the challan in the court on 22.11.2005 by depositing the rent to the treasury. 1,500 in the court directing to submit the challan in the court on 22.11.2005 by depositing the rent to the treasury. The Defendant admittedly failed to submit the challan on the date fixed. Consequently thereupon the Miscellaneous case was dismissed on 22.11.2005 and thereafter the case proceeded in accordance with law. The witnesses were examined and cross-examined and the case was fixed for argument. At the stage of argument an application was filed on 7.2.2008 under Section 151 of the Code seeking to accept the challan after restoration of the case. 17. The said application came up for consideration on 28.3.2008 before the learned trial court whereby the learned trial court rejected the petition holding that the case was dismissed on 22.11.2005 and prayer for restoration of the same has been made only on 7.2.2008 which was already exhibited in T.S. No. 38/2006 and, therefore, allowing the restoration petition by accepting the challan would cause prejudice to the Plaintiff. Against the order dated 28.3.2008 the Defendant came to this Court in a writ proceeding whereby this Court observed that in the event of making any such application the learned trial court shall consider the same in accordance with law which is quoted hereinabove. 18. A reading of the order dated 18.6.2009 passed in Title Suit No. 38/2006 would reveal that since this Court passed the order as indicated above the learned trial court thought it fit to allow the Miscellaneous (N.J.) 352/2005 directing to take steps for re-examination of DW2. In the other order dated 18.6.2009 passed in Miscellaneous (J) 18 of 2009 the learned trial court observed that if the Defendant wants to exhibit the challan he can file the same and can exhibit the same through DW2 who is allowed to stand as a witness in the title suit. The orders so passed by the learned trial court without referring the relevant provisions of law cannot be accepted by this Court after closure of the evidences, more so, when the learned court rejected the petition on 28.3.2008 which, if allowed, amounts to review of its own order. 19. The orders so passed by the learned trial court without referring the relevant provisions of law cannot be accepted by this Court after closure of the evidences, more so, when the learned court rejected the petition on 28.3.2008 which, if allowed, amounts to review of its own order. 19. The question of re-examination of a witness along with the provisions to produce documents upon which relief is claimed or relied upon has been dealt with in Order 18, Rule 17 of the Code read with Order 8, Rule 1A of the Code along with Section 137 and 138 of the Evidence Act. Order 18, Rule 17 of the Code empowers the court to recall any witness at any stage of the suit who has been examined (subject to the law of evidence for the time being in force) put such questions to him as the court thinks fit. Section 137 of the Evidence Act provides for reexamination subsequent to the cross-examination by the party who called him shall call for his re-examination. Section 138of the evidence act provides with direction of re-examination which the court may be directed to the explanation of matters referred to in cross-examination and if new matters is, by permission of the court, introduced in reexamination, the adverse party may further cross-examine upon the matter. By allowing the cross-examination of DW2 vide order dated 18.6.2009, the Defendant would be allowed to fill up the lacunae which is not permissible under the law. 20. Moreover, when the challan depositing the rent for the month of October 2005 was not produced before the court as directed resulting in dismissal of the Miscellaneous Case (N.J.) Case No. 352/2005 cannot be re-opened under Order 8, Rule 1A of the Code in exercise of power under the inherent jurisdiction and/or under Section 138 of the Evidence Act read with Order 18, Rule 17of the Code. 21. Considering the matter in its entirety and the decisions relied upon by the learned Counsel appearing for the Petitioner it would reveal that the learned trial court has exceeded in its jurisdiction in passing the orders dated 18.6.2009 in Title Suit No. 38/2006 and in Miscellaneous (J) No. 18 of 2009 and, thus, the same require interference, which the court hereby do. 22. 22. In the result both the revision petitions are allowed setting aside the orders passed in Title Suit No. 38 of 2006 and Miscellaneous (J) No. 18 of 2009 on 18.6.2009 by the learned Munsiff No. 1 Jorhat. Since the case is of the year 2003, the learned trial court is directed to dispose of the suit within two months from the date of receipt of a certified copy of this order. 23. Stay order passed earlier stands vacated. 24. The parties are left to bear their own costs.