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2013 DIGILAW 961 (AP)

Satyanarayana Reddy v. Ramachandra Reddy

2013-11-04

A.V.SESHA SAI

body2013
ORDER : A.V. Sesha Sai, J. 1. Since these two revisions filed under article 227 of the Constitution of India, arise out of one suit and are inter related, these two revisions are heard together and are being disposed of by common order. 2. Plaintiffs in O.S. No. 161 of 2005 on the file of the Court of the Prl.Junior Civil Judge, Sangareddy, are the petitioners in these two revisions. 3. C.R.P. No. 4053 of 2013 is against the order dated 18.07.2013, allowing I.A. No. 841 of 2013 filed by the 1st defendant/1st respondent herein, under Section 151 of Code of Civil Procedure, seeking to recall PW1 for further cross-examination. 4. C.R.P. No. 4054 of 2013 is against the order dated 18.07.2013, allowing I.A. No. 842 of 2013 filed by the 1st defendant/1st respondent herein under Section 151 of Code of Civil procedure to recall PW1 for further cross-examination, touching the contents of affidavit in I.A. No. 329 of 2006. 5. Petitioners herein instituted O.S. No. 161 of 2005 on the file of the Court of Prl. Junior Civil Judge, Sangareddy. Respondents herein, seeking declaration and perpetual injunction. 6. In the said suit, O.S. No. 161 of 2005, the 1st defendant filed the present I.A. Nos. 841 & 842 of 2013 for recalling PW1 for further cross-examination stating that the plaintiffs filed I.A. No. 329 of 2006 on 31.01.2006 under Order XI, Rule 1 & 2, read with Section 151 CPC; defendant No. 1 filed counter and defendant No. 2 also filed a separate counter; at this stage, defendant No. 1 is advised to recall PW1 for further cross-examination which is essential for adjudicating the matter; in order to substantiate that how the plaintiffs are playing fraud and mischievousness on the Court and to confront the contents of the affidavit in I.A. No. 329 of 2006, it is essential to recall PW1 for further cross-examination touching the matter in I.A. No. 329 of 2006; PW1 could not be confronted the contents of the affidavit by oversight. 7. 7. Resisting the said two interlocutory applications, plaintiffs/petitioners herein, filed counter contending inter-alia that the 1st defendant is misleading the Court with regard to facts of the case as well as contents of I.A. No. 329 of 2006 filed by the plaintiffs who is not a party to the suit; I.A. No. 329 of 2006 is not pressed by the counsel, with the permission of the Court for filing fresh application to call for documents of the 2nd defendant and the counter was filed by the then counsel for both the defendants and not by the present counsel; in the affidavit it is mentioned that no impersonation is done and there is no need for any interrogation or inspection of documents pertaining to ex-service man; the adjudication over the contents of the petitioner which is not a part of the suit now does not arise; there is a judicial admission in the Court to clear controversy with regard to impersonation of the documents or inspection of documents pertaining to ex-service man i.e., defendant No. 2 in the suit; petition is not maintainable and the 1st defendant is estopped from recalling PW1 either to fill up lacunae or cause prejudice to the plaintiffs; the reason to recall PW1 by oversight is not excusable in law. 8. The learned Prl.Junior Civil Judge, by virtue of orders dated 18.07.2013 which are impugned in these revisions, allowed I.A. Nos.841 & 842 of 2013 and the operative portion of the said order reads as under; 9. In the result, both the petitions are allowed and PW1's further evidence is reopened and PW1 is recalled subject to payment of costs of Rs. 500/- to PW1 by 25.07.2013, failing which the petition stands dismissed. 10. Calling in question the validity and the legal acceptability of the said orders, these two revisions have been filed, urging a number of grounds. 11. Heard Sri Syed Moosa Kazeem, learned counsel for the petitioners and Sri V.Ravinder Rao, learned counsel for the respondents and perused the material available on record including the orders under revision. 12. Reiterating the contents of the counters filed before the Court below, in the interlocutory applications and the grounds of present revisions, it is contended by the learned counsel for the petitioners that the Court below is not justified in allowing I.A. Nos. 841 & 842 of 2013 having made observations in favour of the plaintiffs. 12. Reiterating the contents of the counters filed before the Court below, in the interlocutory applications and the grounds of present revisions, it is contended by the learned counsel for the petitioners that the Court below is not justified in allowing I.A. Nos. 841 & 842 of 2013 having made observations in favour of the plaintiffs. Per contra, it is strenuously contended by Sri V. Ravinder Rao, learned counsel for the respondents that the Court below is justified in allowing the applications and that the impugned orders would not cause prejudice to the petitioners herein and the applications filed before the Court below are bona fide and to prevent abuse of process of law and to bring the realities on record. It is also further contended by the learned counsel for the respondents that the orders passed by the Court below are discretionary and there are no grounds made out by the petitioners to interfere with the said orders under Article 227 of the Constitution of India. To bolster his submissions, the learned counsel for the respondents places reliance on the judgments reported in Ouseph Mathai and others v. Abdul Khadir, (2002) 1 SCC 319 , Estralla Rubber v. Das Estate (P) Ltd., (2001) 8 SCC 97 , K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275 and Surya Dev Rai v. Ram Chander Rai, 2003 (5) ALD 36 (SC) : (2003) 6 SCC 675 . 13. Now the questions which need to be answered by this Court in the present revisions are whether the orders of the Court below are tenable and whether they require any correction under Article 227 of the Constitution of India. 14. The provision of law which is germane and relevant for the purpose of resolving the controversy in the present revision is Order XVIII Rule 17 of Code of Civil Procedure which reads as follows; "17. The Court may 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." 15. The present applications are required to be considered and adjudicated in terms of and in the light of above said provision of law and the parameters laid down by the Courts under the said provision of law. The present applications are required to be considered and adjudicated in terms of and in the light of above said provision of law and the parameters laid down by the Courts under the said provision of law. In the case of Ouseph Mathai and others v. Abdul Khadir (supra), the Honourable Supreme Court at paragraph No. 3 held as follows: "3. Assailing the impugned judgment it has been argued on behalf of the appellant-landlords that even though the High Court had the power of superintendence under Article 227 of the Constitution of India, yet the same was required to be exercised sparingly and only in cases where the subordinate courts and tribunals are shown to have erroneously assumed jurisdiction or failed to exercise the jurisdiction vested in them and the order impugned showed some error of law apparent on the face of the record. Arriving at a finding which is alleged to be perverse or based on no material could not be a ground to exercise the power under the aforesaid article." 16. In the case of Estralla Rubber v. Das Estate (P) Ltd. (Supra), the Honourable Supreme Court at paragraph No. 6 held as follows; "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to." 17. In the case of K.K. Velusamy v. N. Palanisamy (supra), the Honourable Supreme Court at paragraph Nos. 9, 10, 11 & 19 held as follows: "9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate) 10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate) 10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions. 11. There is no specific provision in the Code enabling the parties to reopen the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for reopening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications. 19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. 19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs." 18. At this juncture, it is also relevant to refer to the judgments reported in Bolla Ajay Babu v. Nalla Manikyamma, 2010 (1) ALD 163 and Vengala Narayana Reddy v. Vengala Ramana Reddy, 2008 (6) ALD (NOC 76). 19. In Bolla Ajay Babu v. Nalla Manikyamma (supra), this Court at paragraph No. 6 of the said Judgment held as follows: "I have perused the copy of the impugned order passed by the Court below in I.A. No. 808 of 2009. The Court below rejected the said application on two grounds that (i) the certified copies of the documents were not obtained by the petitioner and that they were obtained by a third party and (ii) there is no reference to the documents in the pleadings, which are sought to be received. So far as ground No. 1 is concerned, it is not necessary that the petitioner should only obtain the certified copies of the documents and it is no ground at all to reject the application, but the Court below was right in holding that the documents cannot be received in evidence by granting leave in the absence of any reference about the same in the pleadings. This Court is also of the opinion that in the absence of any reference to the documents, which are sought to be received, in the pleadings, the petitioner cannot seek leave of the Court to receive such documents, at the belated stage, when the suit is coming up for further evidence on the side of the plaintiff. Further the judgment relied on by the learned Counsel for the petitioner is also of no help to the petitioner as in the said judgment, the documents, which were sought to be marked, were referred to in the plaint. In the said judgment, it was held that certified copies can be received when they are referred to in the plaint and their authenticity is not disputed. In any event, having regard to the findings recorded by the Court below for rejection of the applications, I do not find any illegality in the orders impugned so as to interfere with the same in exercise of powers under Article 227 of the Constitution of India." 20. In Vengala Narayana Reddy v. Vengala Ramana Reddy (supra), this Court held as follows: "Order VII Rule 14 of the Code of Civil Procedure which deals with production of documents on which the plaintiff sues specifically provides that all the documents sought to be relied upon by the plaintiff shall be produced in the Court along with the plaint. However, sub-rule (3) makes it clear that the documents which ought to be produced in the Court along with the plaint, but could not be produced, shall not be received in evidence without the leave of the Court. It is also relevant to note that sub-rule (2) of Rule 14 of Order VII obligates that in case any document is not in possession or power of the plaintiff, he shall state so in the plaint and also mention in whose possession or power such document is. Admittedly, in the case on hand, in the plaint the plaintiff did not refer to the documents now sought to be received in evidence. That apart, the Court below having considered the nature of the documents sought to be received held that in view of the oral and documentary evidence already on record, the documents sought to be produced particularly at a belated stage are not relevant. That apart, the Court below having considered the nature of the documents sought to be received held that in view of the oral and documentary evidence already on record, the documents sought to be produced particularly at a belated stage are not relevant. The said discretion exercised by the Court below cannot be said to be unreasonable or perverse on any ground whatsoever. In the circumstances, I am unable to hold that the orders under revision suffer from any patent error of fact or law warranting interference by this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India." 21. A number of contentions have been advanced on behalf of the parties to the present C.R.Ps. by the respective counsel. A reading of the orders impugned manifestly show that the only ground recorded by the learned Prl.Junior Civil Judge is that in the event of allowing the applications, it would not result any prejudice to the other side. As per the considered opinion of this Court, such a reason is neither sufficient nor the same can be countenanced. The Court below ought to have considered the request of the petitioners in the interlocutory applications in terms of Order 18, Rule 17 of the Code of Civil Procedure and the principles and parameters laid down by the Courts. In view of the said reasons, this Court is of the opinion that there is jurisdiction error committed by the Court below which warrants interference of this Court under article 227 of the Constitution of India. 22. In the Judgment in the case of Surya Dev Rai v. Ram Chander Raj (supra), the honourable Supreme Court held at paragraph No. 24 as follows; “24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction." 23. In view of the reasons recorded supra, and keeping in view the principles and parameters laid down in the Judgments referred to above, this Court deems it appropriate to set aside the orders impugned in the present revisions and to remand the I.A. Nos. 841 and 842 of 2013 to the Court below for fresh consideration. 24. For the aforesaid reasons, Civil Revision Petitions are allowed and the orders dated 18.07.2013 passed by the Principal Junior Civil Judge, Sangareddy, in I.A. Nos. 841 and 842 of 2013 are set aside and the said I.As are restored to file and remanded for fresh consideration to the Court below. The Court below shall dispose of the same without being influenced by any of the observations made either in the impugned orders or in this order. No order as to costs. 25. As a sequel, miscellaneous Petitions, if any, pending in these Civil Revision Petitions, shall stand closed.