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2013 DIGILAW 621 (JK)

Vinod Kumar v. Brij Mohan

2013-10-23

DHIRAJ SINGH THAKUR

body2013
1. The present civil revision has been filed against the order dt. 1.12.2012, passed by the learned Munsiff, Katra, in suit titled “Brij Mohan v. Raj Kumari and ors”, whereby the application filed by the applicants-petitioners herein for permission to lead secondary evidence to prove the registered rent deed dt. 31.1.1986, has been rejected. 2. The court below proceeded to dismiss the application on the ground that the application filed by the petitioners was not maintainable in as much as, notice in terms of Section 66 of the Evidence Act (here-in-after called the Act), had not been served, which according to the learned Munsiff, was a pre-requisite. 3. Learned counsel for the petitioners urged that the trial court had taken a very technical view of the matter and that the notice should be deemed to have been served on the non-applicants-respondents herein in terms of the aforementioned Section when the petitioners-applicants before the trial court, had filed an application under Order XI R.14 of the Code of Civil Procedure, for production of the original rent deed dt. 31.1.1986, executed by the non applicants-respondents. It was stated that in reply to the aforementioned application, the respondents filed their objections wherein it was stated that the respondent-non applicants were not in possession of any such rent deed alleged to have been executed nor did they have any knowledge with regard to the execution thereof. It is in that context urged that it was not necessary for the petitioners to issue a formal notice as envisaged under Section 66 of the Evidence Act. 4. Learned counsel for the respondents, on the other hand, questioned the maintainability of the revision petition itself in the light of the amendment to Section 115 of the CPC. He further reiterated that in the absence of any notice as envisaged under Section 66 of the Act, the application was rightly rejected by the learned trial court. 5. Heard learned counsel for the parties. 6. Section 66 of the Act is relevant and is reproduced below:- “66. He further reiterated that in the absence of any notice as envisaged under Section 66 of the Act, the application was rightly rejected by the learned trial court. 5. Heard learned counsel for the parties. 6. Section 66 of the Act is relevant and is reproduced below:- “66. Rules as to notice to produce Secondary evidence of the contents of the documents referred to in section 65, clause (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:- (1) When the document to be proved is itself a notice; (2) When, from the nature of the case, the adverse party must know that he will be required to produce it; (3) When it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (4) When the adverse party or his agent has the original in Court; (5) When the adverse party or his agent has admitted the loss of the document; (6) When the person in possession of the document is out of reach of, or not subject to, the process of the Court." 7. From a reading of the Section (supra), it becomes clear that notice to the party has to be a notice to produce the document, who is in possession or power of the said document. Such notice can also be served upon his attorney or pleader. In fact, there is no specific form of notice prescribed by the Act itself. It rather, generally refers to ‘notice prescribed by law’. It further envisages that, in case, there is no notice prescribed by law, then the notice has to be such as the court considers reasonable under the circumstances of the case. 8. In fact, there is no specific form of notice prescribed by the Act itself. It rather, generally refers to ‘notice prescribed by law’. It further envisages that, in case, there is no notice prescribed by law, then the notice has to be such as the court considers reasonable under the circumstances of the case. 8. The proviso further envisages that notice shall not be required to be served in certain conditions enumerated thereunder but further gives ample power to the court to dispense with the requirement of such notice in a case in which the court thinks fit to dispense with the same. 9. From the facts narrated above, it is clear that an application was, in fact, filed by the petitioners before the learned trial court under the provisions of O.XI R.14 of the CPC, for directing the respondents-non applicants before the trial court to produce the original deed dt. 31.1.1986, which was appropriately replied denying, not only the possession and power over the said document but also the factum of its execution. Once the non applicants denied the factum of possession or power over the document and also denied knowledge regarding the execution of such a document, there was no necessity at all to issue a notice in as much as requirement of service of notice is only upon such a person in whose possession or power, such a document lies. 10. Notwithstanding this, the application under O. XI R.14 CPC itself ought to have been construed to be a notice in terms of Section 66 notwithstanding the power to exempt vested with the court under the proviso. 11. The counsel for the petitioners also referred to a judgment of the Apex Court reported as Nawab Shaqafath Ali Khan and ors v. Nawab Imdad Jah Bahadur and others, (2009) 5 SCC 162 , to assert that even when the revision petition is not maintainable, the same can be treated to be a petition under Section 104 of the Constitution of Jammu and Kashmir read with Articles 227 of the Constitution of India. 12. 12. In Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 , the Apex Court upon a complete analysis of its various judgments, carved out the principles to be followed by the High Court’s while exercising jurisdiction under Article 227 of the Constitution and in paragraph 49 of the judgment in the aforementioned case, observed as under:- “On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court’s jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. This history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Court’s under Article 227 and have been discussed above. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, “within the bounds of their authority”. (e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, “within the bounds of their authority”. (f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice has been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) The High Court’s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court’s power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Courts. Jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. (n) This reserve and exceptional power of judicial intervention is not to be exceeded just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality." 13. The document, which the petitioners sought to prove is a rent deed, which is duly registered with the Sub-Registrar under the Registration Act. The said document, according to the petitioners, would go to the root of the matter to establish the relationship of landlord and tenant between the petitioners and the respondents. By refusing permission to lead secondary evidence to prove a docu- ment, which is otherwise duly registered, would seriously prejudice the rights of the petitioners besides, prolong the litigation. 14. The Court below had clearly failed to appreciate the true scope and extent of the powers vested in it under Section 66 of the Act, which gave ample free play in the joints to the court below to exercise its discretion even to dispense with the requirement of such notice in a given case or even treat an application under O.XI R.14 as a notice under the aforementioned Section. Failure to do the above clearly amounts to declining to exercise jurisdiction vested in the court in terms of Section 66 of the Act. In such circumstances, this court cannot, therefore, refuse to exercise its power of superintendence with a view to prevent manifest failure of justice. 15. In view of the above and further testing the order impugned on the touchstone of the ratio of the judgment in Shalini Shetty’s case (supra), this petition is treated to be one under Section 104 of the Constitution of Jammu and Kashmir, which is analogous to Article 227 of the Constitution of India. 16. For the reasons mentioned above, this petition is allowed. The order impugned dt. 1.12.2012, passed by the court below, shall stand quashed. The petitioners would be permitted to lead secondary evidence as prayed for by them in the application before the court below.