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2010 DIGILAW 966 (CAL)

Bishnupada Halder v. Ananta Kumar Naskar

2010-08-13

HARISH TANDAN

body2010
Judgment : HARISH TANDON, J. This revisional application is directed against an order no. 142 dated July 24, 2006 passed by the Civil Judge (Junior Division) 2nd Additional Court Diamond Harbour. The opposite party as plaintiff instituted Title Suit no. 228 of 1980 which was renumbered as Title Suit no. 76 of 2004 praying for a decree for declaration that the kobala, in dispute, is not a sale but loan in substance preliminary decree of accounts as consequential relief. The said suit is contested by the petitioner, being the defendant no. 1 therein with the specific defence that after the execution of the deed the petitioner was put into possession and the transaction leading to the execution of the said deed was not loan in substance but a divestation of right, title and interest by way of a sale. It is further contended that the petitioner is not in physical possession of the said plot in question. By way of an application the opposite party no. 1 amended the plaint by incorporating the averment that the said transaction carries an interest @ 18% p.a. The same was eventually allowed. Ultimately the opposite party no. 1 adduced evidence on his behalf and was cross examined. The witness of the petitioner was also examined and was also cross examined by the opposite party no. 1. The suit was posted for argument and in fact the same was completed. Since a specific point was taken by the petitioner in the argument that the opposite party no. 1 has not laid any evidence on the point of the rate of interest, at such stage the opposite party no. 1 filed an additional affidavit-in-chief with a prayer to accept the same. In the said additional affidavit-in-chief the opposite party no. 1 sought to contend that he took the loan which carries an interest @ 18% p.a. The petitioner vehemently opposed the said application. The trial court allowed the said application on the ground that the opposite party no. 1 shall get a fair chance to prove his own case and there is no possibility of being prejudiced on the part of the petitioner. Assailing the said order the defendant no. The trial court allowed the said application on the ground that the opposite party no. 1 shall get a fair chance to prove his own case and there is no possibility of being prejudiced on the part of the petitioner. Assailing the said order the defendant no. 1 has come up before this court and it is specifically contended that the order impugned cannot be sustained for the reason that there is no provision for filing the additional affidavit-in-chief after the closure of the evidence. Secondly there is no reason given by the trial court for acceptance of such additional affidavit-in-chief. The opposite party no. 1, while negativing such contention, contends that such additional affidavit-in-chief does not contain a new case but an incorporation of formal averment as to the rate of interest. However, he strenuously argued that the said additional affidavit-in-chief was allowed subject to payment of a cost of Rs. 300/- and such costs have been accepted by the learned Advocate appearing on behalf of the petitioner and as such the petitioner is precluded from challenging and/or assailing the said order before this court. Learned Advocate appearing on behalf of the opposite party no. 1 cited a decision of the apex court in case of Bijendra Nath Srivastava (Dead) through LRs. Vs. Mayank Srivastava & Ors. reported in AIR 1994 SC 2562 that after the acceptance of a cost the person is estopped from assailing an order. Having considered the rival contention of the parties it appears that after the closure of the evidence and the argument the opposite party no. 1 filed additional affidavit-in-chief seeking to bring in evidence averment in relation to the quantum of interest. Once witness tenders affidavit as to examination in chief and is cross examined by the other side, there is no provision either in the Evidence Act or in the Code of Civil Procedure which permits the filing of an additional affidavit-in-chief. Order 18 Rule 17 of the Code of Civil Procedure empowers the court to recall any witness who has been examined subject to the law of evidence, to put such questions as it thinks fit. Order 18 Rule 17 of the Code of Civil Procedure empowers the court to recall any witness who has been examined subject to the law of evidence, to put such questions as it thinks fit. Even under Order 18 Rule 4, sub-rule 2 of the said Code, on a plain reading it appears that cross examination and reexamination cannot be made by filing an affidavit but an attendance of witness is required in the court or before the Commissioner appointed by the court. Thus in my view there is no procedure laid down for acceptance of an additional affidavit-in-chief after the closure of an evidence of the witness. The other point taken by the opposite party no. 1 that the petitioner is precluded from challenging the impugned order after having accepted the cost awarded by the court. Such point has no merit in view of the decision of the apex court in case of Bijendra Nath Srivastava (Dead) (supra). Before I deal with the decision of the said apex court it would be profitable to mention the ordering portion of the impugned order which reads : “Ordered that the petition is considered and allowed but with a cost of Rs. 300/- (three hundred only)”. The apex court in case of Bijendra Nath Srivastava (Dead) (supra) was pleased to hold: “20. That apart the principle of estoppel which precludes a party from assailing an order allowing a petition, subject to payment of costs where the other party has accepted the costs in pursuance of the said order applies only in those cases where the order is in the nature of a conditional order and payment of costs is a condition precedent to the petition being allowed. In such a case it is open to the party not to accept the benefit of cost and thus avoid the consequence of being deprived of the right to challenge the order on merits. The said principle would not apply to a case where the direction for payment of costs is not a condition on which the petition is allowed and costs have been awarded independently in exercise of the discretionary power of the court to award costs because in such a case the party who has been awarded costs has no opportunity to waive his right to question the validity or correctness of the order. The decision of the Andhra Pradesh High Court in the Metal Press Works Ltd., Calcutta V.G.M. Cotton Press Co., AIR 1976 Andh Pra 205 on which reliance has been placed by the High court, proceeds on the basis that awarding of costs was, in fact and substance, a part of the entire order allowing amendment in written statement and the said order was a conditional one. The decision of the Madras High Court in Prayag Dossjee Vs. Venkat Perumal, AIR 1933 Madras 410, and the decisions of the Patna High Court in Ramcharan V. Custodian of Evacuee Property, AIR 1964 Patna 275, and M. Kapura Kaur V. Narain Singh, AIR 1949 Patna 49, on which reliance has been placed in the said judgment of the Andhra Pradesh High Court also emphasise that the orders under challenge were conditional orders and payment of costs was a condition precedent to allowing the petition. In Devaiah V. Nagappa, AIR 1965 Mysore 102, the order allowing amendment of the election petition contained a direction regarding payment of costs. It was held that the application was allowed without any condition and that the order was not a conditional order and principle of estoppel was held inapplicable. 21. A perusal of order dated May 8, 1976 shows that the said order is not a conditional order. The Civil Judge, after considering the merits has allowed the proposed amendments. The costs were warded not as a condition precedent to allowing the amendment but by way of exercise of the discretionary power of the court to award costs to the opposite party. It may also be mentioned that the appellants did not accept the said order dated May 8, 1976. They assailed the validity of the same at the stage of final hearing before the trial court but, the said contention was rejected by the Additional District and Sessions Judge on the view that the said order had become final as regards the proceedings before him and the same could not be recalled or reviewed. Thereafter, the appellants assailed the correctness of the order dated May 8, 1976 in the appeal filed by respondents nos. 1 and 3 in the High Court. Thereafter, the appellants assailed the correctness of the order dated May 8, 1976 in the appeal filed by respondents nos. 1 and 3 in the High Court. The principle of estoppel arising from acceptance of costs so to preclude the appellants from challenging the validity of the order dated May 8, 1976 cannot, therefore, be invoked in the facts and circumstances of the present case. Since the grounds given by the High Court for upholding the order dated May 5, 1976 cannot be affirmed the amendments allowed by the said order in so far as they relate to insertion of paragraphs 52 and 53 in the objection petition filed by respondent no. 14 are set aside.” In the said case the apex court was dealing with the impugned order which in its verbatim was quoted in paragraph 12 as follows: “Heard learned counsel for the parties at length and gone through the objections already made and the earlier amendment proposed to be made therein. The objector by the proposed amendment wants to clarify certain points and even to add fresh particulars of alleged misconduct having been committed by the arbitrator in giving the award. The proposed amendment does not amount to depriving the opposite party from any right accrued to them. Further the amendment is necessary in order to decide the matter in controversy involved between the parties. Thus in order to decide the question finally and effectively the amendment proposed is necessary and essential. Further, the opposite party is not prejudiced and can very well be compensated in terms of money. Thus for the aforesaid reasons the amendment is to be allowed on Rs. 50/- as costs.” If I apply the ratio decided in the case of Bijendra Nath Srivastava (Dead) (supra) a person can be precluded from assailing an order after acceptance of a cost awarded therein subject to such cost being a condition precedent. On a bare perusal of the impugned order I do not find any whisper that the said cost was a condition precedent or the consequence of non-payment of such cost has been expressly stated therein. Rather it appears to me that such cost was not a condition precedent to allow the filing of the additional affidavit-in-chief and as such the principle of estoppel does not stand in the way of challenging the order by the petitioner before this court. Rather it appears to me that such cost was not a condition precedent to allow the filing of the additional affidavit-in-chief and as such the principle of estoppel does not stand in the way of challenging the order by the petitioner before this court. The impugned order is, therefore, set aside. The revisional application succeeds. However, there shall be no order as to costs. The department concerned shall supply the certified copy of this order to the parties if the same is applied for on an urgent basis.