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2013 DIGILAW 954 (MAD)

Saharban Beevi v. S. Mumtaj

2013-02-14

S.VIMALA

body2013
Judgment :- The Procedures or Rules are the handmaids of justice and not the mistress of justice, ruled the Hon'ble Supreme Court in 2008 (11) S.C.C. 775 (GENERAL INSTRUMENT COMPANY ..VS.. UNION OF INDIA). Whenever an application is filed, the inherent temptation of the Registry / filing section is to raise the following question; under which provision of law, the application has been filed (as the Section / Provision under which the petition is filed serves as the lighthouse for the case). Equally, whenever an application is returned, raising the query as to the Provision of law, the parties who filed the application, retort raising the question where is the prohibition to file it or under which provision the petition has been returned? This sort of the syndrome of “return – representation” taking away the time and energy of the litigant and the Court has facilitate the creation of the climate of dissociation instead of association. 2. Whenever an application is filed, the dichotomy arising in the mind of the Court is whether the petition should be entertained unless expressly prohibited or the petition should not be entertained unless expressly provided for. This Civil Revision Petition also raises a similar question. 3. This Civil Revision Petition has been filed by the first defendant aggrieved over the dismissal of the petition (on the technical ground that wrong provision of law has been quoted) filed under O.26 R.10 C.P.C., for appointment of Commissioner to send Ex.A.1 – Agreement of sale for the opinion of the Handwriting Expert opinion. 4. Even assuming that no provision of law has been quoted or wrong provision of Law is quoted, what is the duty and responsibility of the Court under such circumstances is the issue to be considered. 1. Whether the Courts should expect express provision of law for each and every application filed before the Court? 2. Unless expressly provided for, whether the Courts are expected to act on the principle that every procedure is to be taken as prohibited? 3. Whether the Courts should act on the principle that every procedure is to be understood as permissible till it is shown to be prohibited by law? 4. Whether the C.P.C., is exhaustive of all the procedural aspects or it is exhaustive of matters specifically provided for? 5. When there is no express provision, under what authority, Court can entertain the claim? 5. 4. Whether the C.P.C., is exhaustive of all the procedural aspects or it is exhaustive of matters specifically provided for? 5. When there is no express provision, under what authority, Court can entertain the claim? 5. The suit has been filed by the plaintiff seeking the relief of specific performance based upon Ex.A.1 - sale agreement said to have been executed by the first defendant. The first defendant has disputed the signature under Ex.A1 sale agreement. At the time when the case was posted for cross-examination of P.W.2, the first defendant moved an application to send the Ex.A.1 for the opinion of the Handwriting Expert. The trial Court had chosen to dismiss that application mainly on the following grounds: (i) Incorrect / wrong provision of Law has been quoted; (ii) The admitted signature of the revision petitioner/1st defendant, for the purpose of comparison i.e., to compare it with that of the disputed signature, was not made available and no detail has been furnished about the availability of admitted signature. 6. Whether the reasoning given by the trial court suffers from illegality / material irregularity is the issue canvassed in this Civil Revision Petition. 7. The petition has been filed in the Trial Court by the first defendant quoting the provision Order 26 Rule 10(A) of the Civil Procedure Code. Order 26 Rule 10(A) of the Civil Procedure Code, provides for issuing commission for scientific examination. The Trial Court has held that the petitioner has quoted wrong provision of law. Perhaps the learned Trial Judge entertaining narrow understanding of the phrase the “scientific investigation”, has chosen to dismiss the petition. 8. “Scientific Investigation” would mean and include ascertainment of facts by observation and experiment, tested systematized and brought under a set of principle as held in 2010 (3) M.L.J. 65 . (S. CHINNATHAI ..VS.. K.C. CHINNA DURAI). If in the opinion of the Civil Court that the evidence of forensic expert is very much necessary for deciding the dispute between the parties, the Civil Court instead of exercising the powers under Section 73 of the Evidence Act, shall have to invoke the provisions of O.26 R.10 of C.P.C. There is no bar for the Court to order appointment of advocate commissioner for the purpose of taking a document to an expert. 9. 9. It would be relevant to quote the following decisions, which provide the road map / route map for the Civil Courts while handling the procedural aspects. (i) Holding that (a) the existence of inherent power pre-supposes that any order that is not prohibited is within the competence of the Court; (b) Any order not prohibited by the Court can be made by the Court, if it is expressly provided for, it is made by the virtue of that authority and if it is not expressly provided for, it is made because of its being necessary for the ends of justice or prevention of abuse of the process of the Court, the decision reported in AIR 1966 All 84 (RajNarain Saxena ..Vs.. Bhim Sen And Ors.) highlighted the approach to be made by the Court in procedural aspects as follows:- “There is Section 151 in the Code preserving the inherent power of the Court "to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." This expressly authorises a Court to make such orders as it considers necessary for the ends of justice or prevention of abuse of the process of the Court. A Court can make any order even though not provided in the Code, the only condition being that it is necessary for the ends of Justice or prevention of abuse of the process of the Court. The provisions of the Code are generally meant to serve the ends of justice but in their very nature they cannot reach all possible circumstances that can exist and there are bound to be no provisions dealing with some of the circumstances. Also some of the provisions may result in abuse of the process of the Court. Consequently every Court has the inherent power, recognised by Section 151, to make any orders that it considers necessary for the ends of justice or preventing abuse of the process of the Court. The Code cannot, and does not even purport to be exhaustive and hence the residuary power has been conferred upon the Court through recognition of its inherent power. With this residuary power the Code is now exhaustive; for circumstances which are likely to exist frequently or can be contemplated there are express provisions; for others there is the inherent power of the Court. With this residuary power the Code is now exhaustive; for circumstances which are likely to exist frequently or can be contemplated there are express provisions; for others there is the inherent power of the Court. The existence of the inherent power presupposes that any order that is not prohibited is within the competence of the Court. Any order not prohibited by the Code can be made by a Court; if it is expressly provided for it is made by virtue of that authority and if it is not expressly provided for it is made because of its being necessary for the ends of justice or prevention of abuse of the process of the Court”. (ii) The full Bench decision of Allahabad High Court relies upon the Full Bench decision reported in NARSINGH DAS ..VS.. MANGAL DUBEY (1882 ILR 5 ALL 163 (FB)) wherein it has been observed as follows:- "Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed". Subject to only this condition that the procedure that is not provided for expressly by the Code must be justified on the ground of the ends of justice or of prevention or abuse of the process of the Court. Therefore, it is clear that the Trial Court ought not to have dismissed the petition on technical grounds. The Court is deemed to possess necessary powers unless prohibited. (iii) Even in respect of matters specifically provided for, the Code is not exhaustive, and the Courts are left free to make a different order if it is necessary for the ends of justice or prevention of abuse of process of the Court, it was held in ShamuPatter ..Vs.. Abdul Kadir Rowthan (39 Ind App 218, at p. 223 (PC)), as follows:- "Every Court trying civil causes has inherent jurisdiction to take cognizance of questions which cut at the root of the subject-matter of controversy between the parties" even in the absence of any provision in the Code. Abdul Kadir Rowthan (39 Ind App 218, at p. 223 (PC)), as follows:- "Every Court trying civil causes has inherent jurisdiction to take cognizance of questions which cut at the root of the subject-matter of controversy between the parties" even in the absence of any provision in the Code. It is also not correct to say that the Code is exhaustive in matters specifically provided for because even in respect of such matters the Court is left free to make a different order if it is necessary for the ends of Justice or prevention of abuse of the process of the Court.” 10. The above decisions would go to show that every procedure is to be understood as permissible and not prohibited, as prohibition cannot be presumed. Procedures are meant to be used as general guidelines and they are not meant to be used to defeat the rights of the parties. The standardisation of the procedure is for the purpose of facilitating free flow of the cases and it is not meant to act as obstacles in realising the rights of the parties. 11. Coming back to the merits of the case, the apprehension of the respondent/ plaintiff was that the petition seeking Expert's opinion, ought to have been filed only to drag on the proceedings. This apprehension is baseless. More over, the objection ought not to have been entertained by the trial Court, because the burden of proof is only on the plaintiff to prove that the signature as found in Ex.A1 is that of the signature of the 1st defendant. It is the duty of the plaintiff to take such steps. Instead, the petitioner/1st defendant has taken such steps. Therefore, there cannot be any serious and valid objection when the first defendant himself has chosen to take such steps. Under such circumstances, the trial Court should have allowed the petition. 12. The facts and circumstances discussed above would go to show that both the reasoning (a) that wrong provision of law has been quoted (b) that petition can be dismissed for quoting a wrong provision of law are incorrect and is liable to be set aside. It is for the Court to apply the correct principle of law, even if wrong provision of law is quoted, is the settled legal principle. 13. It is for the Court to apply the correct principle of law, even if wrong provision of law is quoted, is the settled legal principle. 13. In the result, this Civil Revision Petition is allowed and the order of the trial Court dated 07.07.2011 dismissing the petition in I.A.No.6 of 2011 in O.S.No.62 of 2006, is set aside and I.A.No.6 of 2011 filed to send the signature of the revision petitioner/1st defendant for the opinion of the Handwriting Expert, is allowed. The trial Court shall send Ex.A1-sale agreement along with the admitted signature of the first defendant to get the opinion of the Handwriting Expert, immediately after the closure of evidence on the side of the plaintiff. The revision petitioner/1st defendant as per the undertaking given before this Court, shall produce the admitted signature before the trial Court after notice to the defendants. No Costs. Consequently, connected miscellaneous petition is closed.