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2018 DIGILAW 848 (ORI)

Badal Mohanta v. Munimani Mohanta

2018-12-14

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 20.8.2018, passed by the learned Civil Judge (Senior Division), Udala, in C.S. No.49 of 2015. By the said order, the learned trial Court rejected the application of the defendants to mark the certified copy of the Record of Rights and rent receipts as exhibits. 2. The dispute lies in a narrow compass. Suffice it to say that plaintiff no.2-opposite party along with one Chandramani Mohanta instituted a suit for declaration of right, title and interest, confirmation of possession and declaration that the registered sale deed dated 18.4.2013 as null and void. The defendants filed a written statement denying the assertions made in the plaint. After closure of the evidence, the defendants have filed an application to mark the certified copy of the Record of Rights and rent receipts as exhibits along with an application for condonation of delay. It is stated that the documents were not available, for which, the same could not be filed at the time of the trial. After the documents made available, the same were filed. Plaintiffs filed objection to the same. 3. Placing reliance on the decision of this Court in the case of Sarat Chandra Mohapatra Vs. Narsingha Mohapatra & another, (2017) 2 CurLR 250, learned trial Court held that after conclusion of evidence, the argument was heard from the side of the defendants on 03.04.2018. The matter was adjourned to 05.04.2018 for argument from the side of the plaintiffs. Thereafter, the case had suffered several adjournments. On 10.08.2018, another Advocate was engaged by the defendants. A petition was filed to exhibit certified copy of Record of Rights and rent receipts along with an application for condonation of delay in filing the same. The documents sought to be marked as exhibits have no direct nexus with the issues of the suit. The Record of Rights are not relevant to decide the issue. The defendants were not diligent enough to bring those documents into the case record. Held so, it dismissed the petition. 4. Heard Mr. A. P. Bose, learned counsel on behalf of Mr. Vijay Kar, Advocate. 5. Learned counsel for the petitioners submitted that the documents sought to be executed were not in the possession of the defendants. The same were not available. The documents are relevant to decide the real dispute between the parties. The said documents are public documents. 4. Heard Mr. A. P. Bose, learned counsel on behalf of Mr. Vijay Kar, Advocate. 5. Learned counsel for the petitioners submitted that the documents sought to be executed were not in the possession of the defendants. The same were not available. The documents are relevant to decide the real dispute between the parties. The said documents are public documents. Plaintiffs shall not be prejudiced in any way, inasmuch as, they will be given an opportunity of rebuttal. He places reliance on the decision of the apex Court in the case of Billa Jagan Mohan Reddy and another Vs. Billa Sanjeeva Reddy and others, (1994) 4 SCC 659 . 6. Order 13 Rule 1 C.P.C. provides that parties or their pleaders shall produce, on or before the settlement of issues, all the documentary evidence of in original where the copies thereof have been filed along with plaint or written statement. 7. The Apex Court in the case of Billa Jagan Mohan Reddy (supra) held : “It is clear from its bare reading that the parties or their counsel shall be required to produce all the documentary evidence in their possession or power which they intend to rely on to establish their right along with pleadings or before settlement of the issues. The court is enjoined under sub-rule (2) to receive such documents provided they are accompanied by an accurate list thereof prepared in the prescribed form. If they are not in the party's possession or custody, it shall be filed by the party along with an application to condone the delay in filing them. The explanation for delay is not as rigorous as one filed under Section 5 of the Limitation Act. These documents were not in the possession or custody of the appellants, but they have obtained certified copies from the Revenue Authorities and sought to be produced. It is undoubted that there is a delay in production of the said documents. But the trial court had stated that the application was filed at the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It is undoubted that there is a delay in production of the said documents. But the trial court had stated that the application was filed at the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27 CPC the appellate court would receive the documents and consider their effect thereof. When such is the position, when the documents are sought to be produced in the trial court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal if any and their relevance and effect they may have, be considered in deciding the issues arising in the controversy.” There is no quarrel over the proposition of law. 8. In Sarat Chandra Mohapatra (supra), this Court held that: “6. Order 7 Rule 14 CPC provides for production of document on which plaintiff sues or relies. Sub-Rule (3) of Rule 14 of Order 7 CPC provides that 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. Order 13 Rule 1 CPC provides that the parties or their pleader shall produce, on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with the plaint or written statement. The Code had a specific provision in 18 Rule 17A CPC for production of evidence not previously known or which could not be produced despite due diligence. The said provision was deleted with effect from 1.7.2002. xxx xxx xxx 8. In K. K. Velusamy (supra), the apex Court in paragraphs 9 to 14 held as follows: “9. The Code had a specific provision in 18 Rule 17A CPC for production of evidence not previously known or which could not be produced despite due diligence. The said provision was deleted with effect from 1.7.2002. xxx xxx xxx 8. In K. K. Velusamy (supra), the apex Court in paragraphs 9 to 14 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. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, 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 re-open the evidence for the purpose of further examination-in-chief or crossexamination. 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. 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 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 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. 12. 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 v. State of UP, Manohar Lal Chopra v. Seth Hiralal, Arjun Singh v. Mohindra Kumar, Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava, Nain Singh v. Koonwarjee, Newabganj Sugar Mills Co. Ltd. v. Union of India, Jaipur Mineral Development Syndicate v. CIT, National Institute of Mental Health & Neuro Sciences v. C. Parameshwara and Vinod Seth v. Devinder Bajaj]. 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. 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. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in 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 in 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. 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. 13. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence. 14. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for reopening the evidence to examine a fresh witness or for recalling any witness for further examination. 14. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for reopening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.” This Court further held that ignorance of the plaintiff would not provide sufficient excuse for the delay in making the application. Section 151 CPC cannot be used for re-opening the evidence or recalling the witness at the sweet will of the plaintiff after closure of evidence, without any valid cause. No good cause was shown to the satisfaction of the Court for not filing the documents on or before the settlement of issues. The object of Order 13 Rule 1 CPC is to lay down the stage when a party shall file documentary evidence so that each known on what document the other seeks to rely and get ready for trial. The matter was carried to the apex Court in SLP(C) No.028498 of 2017, which was dismissed on 20.11.2017. 9. Reverting to the facts of the case and keeping in view the aforesaid principles, this Court finds that after conclusion of arguments from the side of the defendants, the matter suffered several adjournments. The defendants rose from the deep slumber and filed an application to mark the documents as exhibits along with an application for condonation of delay. The reason for non-filing of the documents at the time of the trial is a vague. The Records of Rights are public documents. The same are always available. Thus, the explanation offered by the defendants that the certified copies of the said documents are not available is difficult to fathom. The reason for non-filing of the documents at the time of the trial is a vague. The Records of Rights are public documents. The same are always available. Thus, the explanation offered by the defendants that the certified copies of the said documents are not available is difficult to fathom. The defendants are not diligent to bring those documents into case record. As has been rightly held by the trial Court in the suit for declaration of title and declaration that sale deeds are void, the documents sought to be exhibited are not relevant to decide the issue. 10. The impugned order does not suffer any illegality or infirmity warranting interference by this Court under Article 227 of the Constitution. The petition is dismissed. Since the suit is posted for argument, the learned trial Court shall do well to hear the argument of the parties and pronounce the judgment by 15th of January, 2019.