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2014 DIGILAW 986 (AP)

Guduru Nirmala v. Guduru Ashok Kumar

2014-08-05

A.V.SESHA SAI

body2014
Judgment : Since these two revisions arise out of one suit and the reasons assigned by the Court below in the impugned orders are also the same and since they are interrelated, this Court deems it appropriate to dispose of these two revisions by way of this Common Order. Heard Sri K. Raghuveer Reddy, learned counsel for the petitioner and Sri R. Syam Sunder, learned counsel for the respondent, apart from perusing the material available on record. C.R.P. No.1743 of 2014 assails the order dated 29.04.2014 passed by the Court of the Senior Civil Judge, Suryapet, allowing I.A.No.636 of 2011 in O.S.No.17 of 2000 filed under Order 7 Rule 14(3) r/w Section 151 of the Code of Civil Procedure. C.R.P.No.1744 of 2014 is filed against the order dated 29.04.2014 passed by the said Court, allowing I.A.No.637 of 2011 in O.S.No.17 of 2000 filed by the plaintiff/respondent herein under the provisions of Order 18 Rule 17 r/w Section 151 of the Code of Civil Procedure. The respondent herein instituted O.S.No.17 of 2000, seeking declaration of title, for recovery of possession of the suit schedule property and for cancellation of decree in O.S.No.654 of 1980. In the said suit, the defendant/petitioner herein filed a written statement, denying the averments in the plaint. In the said suit, the evidence was closed in the year 2009. In the said suit, the plaintiff/respondent herein filed two interlocutory applications, i.e., 1) I.A.No.636 of 2011 under Order 7 Rule 14(3) r/w Section 151 of the Code of Civil Procedure, seeking permission of the Court to file three documents, viz., (1) Secondary School Certificate of the plaintiff issued by the Board of Secondary Education, A.P. No.K365406, R.No.0477895 dated 31.05.1994, (2) Duplicate copy of the Certificate of Marriage of the Plaintiff H.M/716/2009 dated 13.11.2009 issued by the Sub Registrar of Marriages Saroornagar, R.R. District at Hyderabad, and (3) Certified copy of the plaint in O.P.S.R.No.16108/2000 issued by the Hon’ble Court of Chief Judge, City Civil Court at Hyderabad; and 2) I.A.No.637 of 2011 was filed by the plaintiff/respondent herein under the provisions of Order 18 Rule 17 r/w Section 151 of the Code of Civil Procedure, seeking to recall P.W.1 for the purpose of marking the said documents. The defendant/petitioner herein filed counters, resisting the said applications filed by the plaintiff/respondent herein. The defendant/petitioner herein filed counters, resisting the said applications filed by the plaintiff/respondent herein. The learned Senior Civil Judge, by virtue of orders dated 29.04.2014, allowed the said applications filed by the plaintiff/respondent herein mainly on the ground that in the event of allowing the said applications no prejudice would be caused to the defendant/petitioner herein. Calling in question, the validity and the legal acceptability of the said orders passed by the Court below, the present C.R.Ps. have been filed. It is contended by the learned counsel for the defendant/petitioner herein that the orders passed by the learned Senior Civil Judge are erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order 7 Rule 14(3) and Order 18 Rule 17 of the Code of Civil Procedure. It is further argued by the learned counsel that in the affidavit filed in support of the application, the plaintiff/respondent herein did not assign any reasons for abnormal delay in filing the applications. It is further argued that in view of the failure on the part of the plaintiff/respondent herein in assigning proper reasons for the delay in filing the documents, the orders passed by the Court below, allowing the applications filed by the plaintiff/respondent herein cannot sustain for judicial scrutiny. In support of his contentions, the learned counsel for the petitioner places reliance on the judgment of the Hon’ble Apex Court in M/s. Bagai Construction Thr., its Proprietor Mr. Lalil Bagai vs. M/s. Gupta Building Material Store in Civil Appeal No.1787 of 2013 dated 22.02.2013. Per contra, it is strenuously contended by the learned counsel for the plaintiff/respondent herein that the orders passed by the learned Senior Civil Judge are in conformity with the provisions of the Code of Civil Procedure and there is neither infirmity nor irregularity in the orders passed by the Court below. In support of his submissions, the learned counsel for the plaintiff/respondent herein rules upon the judgment of the Punjab and Haryana High Court in Santosh Aggarwal vs. Pradeep Kumar and others (2011 (1) CCC 0359 (P & H)) in Cr.No.1046 of 2009 dated 08.04.2010 and Orissa High Court in Sashi Bhusan Rath vs. UCO Bank and others (2011 (2) CCC 0764 (Orissa)) in O.J.C.No.14834 of 1996 dated 06.08.2010. In the light of the pleadings, submissions and contentions, now the questions which fall for consideration of this Court under Article 227 of the Constitution of India are: (1) Whether the orders passed by the learned Senior Civil Judge are in conformity with the object of the relevant provisions of the Code of Civil Procedure? (2) Whether the orders passed by the Court below require any correction by this Court in exercise of the powers conferred under Article 227 of the Constitution of India? The material made available this Court manifestly shows that the plaintiff/respondent herein instituted the suit as long back in the year 2000 and the issues in the suit were framed as long back as on 25.04.2002 and the evidence on behalf of the plaintiff was also closed on 19.08.2004 and the entire evidence was closed in the year 2009. When the matter was coming up for arguments, the present applications were filed by the plaintiff/respondent herein. A perusal of the affidavits filed in support of the present applications clearly shows that the plaintiff/respondent herein did not assign any reasons much less valid reasons for the abnormal delay in filing the present applications except stating that the non-filing of the same was neither intentional nor negligent. It is also to be noted that the defendant/petitioner herein filed counters, opposing these applications and also stated that the plaintiff/respondent herein filed documents without explaining the delay for the failure in filing the said documents within the time. The defendant/petitioner herein also stated in the counter that the documents sought to be filed by the plaintiff/respondent herein were irrelevant for proper adjudication of the matter in dispute. The provisions of law which are germane and relevant for the purpose of resolving the issue in the present C.R.Ps. are Order 7 Rule 14(3) or Order 18 Rule 17 which are as under: Order 7 Rule 14: “14. Production of document on which plaintiff sues or relies:—(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented, and shall at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule apply to documents produced for cross-examination of the plaintiff's witnesses, or, handed to a witness merely to refresh his memory”. Order 18 Rule 17: “17. Court may recall and examine witness. 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 question to hi as the Court thinks fit. At this juncture, it may be appropriate to refer to the judgments of the Hon’ble Apex Court and this Court on this aspect. In the case of K.K. VELUSAMY v. N. PALANISAMY ( (2011) 11 SCC 275 ), the Hon’ble Apex Court, at paragraphs 9, 10, 15, 16, 17, 18 and 19 held as follows: 9. There is no specific provision in the Code enabling the parties to re- open 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 Code 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 re-opening 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 re- open 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. 10. 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. 10. The respondent contended that section 151 cannot be used for re- opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been explained by this Court in several decisions (See : Padam Sen vs. State of UP- AIR 1961 SC 218 ; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527 ; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993 ; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899 ; Nain Singh vs. Koonwarjee 1970 (1) SCC 732 ; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152 ; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348 ; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara - 2005 (2) SCC 256 ; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1 ). We may summarize them as follows: (a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process. (b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances. (c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances. (c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code. (d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature. (e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief. (f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court. 15. The appellant - defendant has taken a consistent stand in his reply notice, written statement and evidence that the agreement of sale was executed to secure a loan of Rs.150,000, as the respondent insisted upon execution and registration of such agreement. 15. The appellant - defendant has taken a consistent stand in his reply notice, written statement and evidence that the agreement of sale was executed to secure a loan of Rs.150,000, as the respondent insisted upon execution and registration of such agreement. If after the completion of recording of evidence, PW1 and PW2 had admitted during conversations that the amount paid was not advance towards sale price, but only a loan and the agreement of sale was obtained to secure the loan, that would be material evidence which came into existence subsequent to the recording of the depositions, having a bearing on the decision and will also clarify the evidence already led on the issues. According to the appellant, the said evidence came into existence only on 27.10.2008 and 31.10.2008, and he prepared the applications and filed them at the earliest, that is on 11.11.2008. As defendant could not have produced this material earlier and if the said evidence, if found valid and admissible, would assist the court to consider the evidence in the correct perspective or to render justice, it was a fit case for exercising the discretion under section 151 of the Code. The courts below have not applied their minds to the question whether such evidence will be relevant and whether the ends of justice require permission to let in such evidence. Therefore the order calls for interference. 16. 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. 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. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application. 17. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. Courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, re-opening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency. 18. In this case, we are satisfied that in the interests of justice and to prevent abuse of the process of court, the trial court ought to have considered whether it was necessary to re-open the evidence and if so, in what manner and to what extent further evidence should be permitted in exercise of its power under section 151 of the Code. The court ought to have also considered whether it should straightway recall PW1 and PW2 and permit the appellant to confront the said recorded evidence to the said witnesses or whether it should first receive such evidence by requiring its proof of its authenticity and only then permit it to be confronted to the witnesses (PW1 and PW2). The court ought to have also considered whether it should straightway recall PW1 and PW2 and permit the appellant to confront the said recorded evidence to the said witnesses or whether it should first receive such evidence by requiring its proof of its authenticity and only then permit it to be confronted to the witnesses (PW1 and PW2). 19. In view of the above, these appeals are allowed in part. The orders of the High Court and Trial Court dismissing IA No. 216/2009 under section 151 of the Code are set aside. The orders are affirmed in regard to the dismissal of IA No.217/2009 under Order 18 Rule 17 of the Code. The trial court shall now consider IA No.216/2009 afresh in accordance with law.” In the case of NAGUMOTHU SRIHARINATH vs. NAGUMOTHU VANI ( 1997 (5) ALD 237 ), this Court at paragraph 5 held as follows: “5. In this case, the reason assigned for recalling the witness for further cross-examination being that of not briefing properly the counsel at the time of cross-examination of P.W.1, cannot be accepted as a ground for recalling of the witness for further cross-examination. However, this order will not in any way affect the production or otherwise of the evidence of the petitioner-defendant.” In the case of C. RAMA MOHAN REDDY vs. KUSETTY SESHAMMA AND OTHERS ( 2012 (4) ALD 96 ), this Court at paragraph 4, held as follows: “4. In my opinion, reasons on which the applications filed by the petitioner are wholly unacceptable. Being the plaintiff, the responsibility lies on him to establish his case with reference to his own pleadings. He is bound to file all those documents, which advance his case and establish his pleadings. The petitioner cannot be permitted to fish out evidence from time to time and on installment basis depending upon what the defendant deposes. Order VII Rule 14 (1) of the Code of Civil Procedure, 1908, enjoins upon the plaintiff to enter all the documents, upon which he relies, in a list and shall produce them in the Court when the plaint is presented. Sub-Rule 3 of Rule 14 vests power in the Court to grant leave to file the documents at a later stage, but such a power has to be exercised only upon the plaintiff satisfying the Court that for convincing reasons those documents could not be filed earlier. Sub-Rule 3 of Rule 14 vests power in the Court to grant leave to file the documents at a later stage, but such a power has to be exercised only upon the plaintiff satisfying the Court that for convincing reasons those documents could not be filed earlier. It is not the pleaded case of the petitioner that the documents, which he sought to file, were not in his possession earlier. As noted above, his main plea is that since respondent No.1 concentrated more on the boundaries, he wanted to strengthen his case by adducing further evidence. Such a reason cannot be accepted for permitting a party to file further evidence at a belated stage.” In the case of VADIRAJ NAGAPPA VERNEKAR (D) THROUGH LRS V. SHARAD CHAND PRABHAKAR GOGATE ( (2009) 4 SCC 410 ), the Hon’ble Apex Court at paragraphs 16 and 17, held as follows: “16. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross- examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. 17. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in- chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.” In the instant case also, the plaintiff/respondent herein failed to assign any valid reasons for the abnormal and exorbitant delay in filing the applications. As held in the above referred judgments, the power under Order 18 Rule 17 of the Code of Civil Procedure is not intended to be used routinely and for mere asking and if the said provisions are used for mere asking and in the routine manner, the same would defeat the very intention behind the amendments brought in for the Code of Civil Procedure to expedite the trials. In the considered opinion of this Court, the reason assigned by the learned Senior Civil Judge that in the event of allowing the applications, the same would not cause any prejudice to the plaintiff/respondent herein, by any stretch of imagination, cannot be a ground for allowing the applications unless the party applying for satisfies the ingredients of the relevant provisions of law. In the considered opinion of this Court, the orders passed by the Court below suffers from fundamental infirmity, as such, the same are unsustainable and untenable in the eye of law. In the opinion of this Court, the judgments on which the learned counsel for the plaintiff/respondent herein has placed reliance would not render any assistance to the plaintiff/respondent herein. For the aforesaid reasons and having regard to the principles and parameters laid down in the above referred judgments, both the C.R.Ps. are allowed and consequently the orders passed by the Court below in I.A.Nos.636 and 637 of 2011 in O.S.No.17 of 2000 dated 29.04.2014 are hereby set aside. No order as to costs. As a sequel, the miscellaneous petitions, if any pending in both these revisions, shall stand closed.