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2019 DIGILAW 1055 (GAU)

Musstt Nilbhan v. Union Of India

2019-09-17

KALYAN RAI SURANA, MANOJIT BHUYAN

body2019
JUDGMENT : K.R. Surana, J. Heard Mr. M.U. Mahmud, the learned counsel for the petitioner. Also heard Mr. J. Payeng, learned standing counsel for the respondents No.2, 5 and 6, Ms. A. Borgohain, learned counsel for respondent No.3 and Ms. U. Das, learned Standing counsel for respondent No.4. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the interlocutory order dated 01.10.2018, passed by the learned Foreigners' Tribunal No.3, Nalbari in F.T. Case No. 147/2018. By the said impugned order, the learned Tribunal had rejected two petitions filed by the petitioner bearing No.1101 and 1102 dated 10.08.2018. The petition No. 1101 was under the provisions Order VIII Rule 9 read with Order VIII Rule 1A(3) read with section 151 of the Civil Procedure Code for allowing her to file her additional written statement and for producing additional documents. The petition No.1102 dated 10.08.2018 was filed under the provisions of Order XVIII Rule 17/17A for recalling and the examining witness. 3. The learned counsel for the petitioner has submitted that the petitioner is a poor and illiterate lady. Through her engaged counsel she had filed her written statement and had adduced evidence by examining witnesses. It is submitted that at the time of filing the written statement and evidence some vital points have been left out, which were not previously known to her. Moreover, some relevant and important documents prior and after 1971 were in custody of others and now the documents has been traced out by her. It is submitted that those documents could not be procured and produced at an earlier stage despite due diligence. It is also submitted that the citizenship of the petitioner is at stake and, as such, the petitioner had prayed for one opportunity to file additional written statement and to file additional documents in support of her stand. By referring to the documents mentioned in Petition No. 1101, it is submitted that the documents sought to be produced are (1) Registered sale deed dated 30.12.1962 in the name of the father of the petitioner, (2) Land revenue paying receipt in the name of the father of the petitioner, (3) Voters list of 1970, 1985, 1993, 2010, 2014 etc. By referring to the documents mentioned in Petition No. 1101, it is submitted that the documents sought to be produced are (1) Registered sale deed dated 30.12.1962 in the name of the father of the petitioner, (2) Land revenue paying receipt in the name of the father of the petitioner, (3) Voters list of 1970, 1985, 1993, 2010, 2014 etc. in the name of the father of the petitioner, (4) Certificate issued by the village headman of Village- Banpora and (5) PAN Card in the name of the petitioner. It is submitted that in Petition No. 1102, the petitioner had specifically prayed for recalling and/ or for re-examination of the petitioner to prove the documents which could not be produced despite due diligence of the petitioner at the time of tendering evidence in her support. 4. In support of his submissions, the learned counsel for the petitioner has relied in the case of Union of India Vs. Ibrahim Uddin & Anr., (2012) 8 SCC 148 as well as the case of Ram Kishan Vs. Harak Chand,1999 Supreme(Raj) 872 to project that if additional evidence left out in the trial stage can be allowed to be introduced by invoking the provisions of Order XLI Rule 27 CPC, there is no reason for the learned Tribunal to deny such opportunity to the petitioner at the trial stage. 5. We have heard the learned counsel for the parties and have perused the documents annexed to the writ petition. It would be relevant to observed herein that in the order dated 19.12.2018, this Court had mentioned that it was not inclined to requisition records as the matter involves decision only on law points. 6. 5. We have heard the learned counsel for the parties and have perused the documents annexed to the writ petition. It would be relevant to observed herein that in the order dated 19.12.2018, this Court had mentioned that it was not inclined to requisition records as the matter involves decision only on law points. 6. As per the statements made in the Petition No. 1101, the stand of the petitioner is as follows (i) that at the time of filing written statement some vital points were left out which were not previously known, (ii) some relevant documents prior to and after 1971 were in custody of others, (iii) now those documents has been traced out, (iv) the documents could not be produced earlier despite due diligence, (v) some important points have come to light with regard to the facts of the case, (vi) the earlier engaged counsel could not argue some important points in support of the issues during the course of trial, (vii) new counsel was engaged, (viii) the documents sought to be produced are morefully described in paragraph 3 above. 7. Thus, it is seen that all the documents now sought to be introduced are all documents which existed before the petitioner had submitted her written statement and adduced her evidence. It is not the case of the petitioner that she could not obtain the documents on an earlier point of time, but her stand is that those documents were with "others", but the petitioner has not explained why her documents would be kept by "others". Even by assuming that the documents were withheld by "others", but certainly no one had prevented the petitioner from procuring certified copy of (i) Registered sale deed dated 30.12.1962, (ii) land revenue paid/ clearance certificate from the concerned Mouzadar in lieu of land revenue paying receipts, (iii) voters list of 1970, 1985, 1993, 2010, 2014, (iv) Certificate issued by the village headman of Village- Banpora, and (5) a fresh and/or duplicate PAN Card at the time of filing defence evidence i.e. while examining defence witnesses. It is also not the case of the petitioner that she had made a prayer before the learned Tribunal to summon the concerned officials to produce the public records and to prove the documents, which are now sought to be produced. It is also not the case of the petitioner that she had made a prayer before the learned Tribunal to summon the concerned officials to produce the public records and to prove the documents, which are now sought to be produced. Thus, we find no material on record which can satisfy the Court that the petitioner had exercised due diligence by making a prayer before the learned Tribunal to summon the concerned official witnesses with original public record so as to prove the relevant documents, which could not be recovered from the custody of "others". Thus, the one and only conclusion is that by filing Petition Nos. 1101 and 1102 dated 10.08.2018, the petitioner has made an attempt to fill up the lacuna which remained after the evidence of the petitioner was closed and the case was fixed for argument. 8. In order to appreciate the submissions by the learned counsel for the petitioner, it would be appropriate to quote Rule 9 of Order VIII CPC:- "9. Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by he leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any for the parties and fix a time of not more than thirty days for presenting the same." 9. On a perusal of the said provisions, it is seen that the said provisions contains a non obstante clause. 10. The learned counsel for the petitioner has referred to the case of Ibrahim Uddin (supra) and Ram Kishan (supra) and thereby it has been argued that if additional evidence can be permitted at the appellate stage by invoking the provisions of Order XLI Rule 27 CPC, there was no reason for the learned Tribunal to disallow additional written statement and additional evidence to be adduced to prove the documents. In this regard we would observe that this Court is not exercising jurisdiction as an appellate Court. As such, appreciation of the matter in light of the provisions of Order XLI Rule 27 CPC is neither required nor appropriate to be invoked by this Court. As of now, the subject matter of this writ petition is that the learned Tribunal had rejected two petitions filed by the petitioner. As such, appreciation of the matter in light of the provisions of Order XLI Rule 27 CPC is neither required nor appropriate to be invoked by this Court. As of now, the subject matter of this writ petition is that the learned Tribunal had rejected two petitions filed by the petitioner. Petition No. 1101 was filed under Order VIII Rule 9 CPC and Petition No. 1102 was filed for recalling and re-examining herself to prove additional documents sought to be brought on record. The said petition was filed under the provisions of Order XVIII Rule 17/17A CPC as well as Section 138 of the Evidence Act. 11. The matter relating to Petition No. 1101 is taken up first. It is seen that in the said petition, the petitioner has not indicated what would be the nature and contents of the subsequent written statement. The statements are vague and, as such, if such a vague petition is allowed, we do not know what pleadings may eventually turn up in the additional written statement. In this regard, we may refer to the decision of this Court in the case of River Valley Tea Company Pvt. Ltd. Vs. Assam Gas Company Ltd., (CRP 207/2017) decided on 26.09.2018, wherein it was held as follows:- "18. Having perused the judgments cited by the learned counsel for the petitioner, it leaves this Court with no doubt that the trial court must record its satisfaction to the nature of subsequent pleading which is sought to be introduced. If the Court is satisfied that the subsequent pleadings are required for the just and fair decision of the case, in such an event, the trial court even has suo motu inherent powers under Order VIII Rule 9 CPC to direct that a rejoinder/ replication be filed. However, if the rejoinder/ replication is sought to be filed at the instance of the party, in that event the proposed replication is required to accompany the leave petition envisaged under Rule 9 Order VIII CPC. 19. Thus, from the various cases referred herein before, it is a trite law that the party seeking leave to file subsequent pleadings under Order VIII Rule 9 CPC must satisfy the learned trial Court about the nature of the subsequent pleadings sought to be introduced. However, if the learned trial Court requires any subsequent pleadings, it has powers to issue such direction. However, if the learned trial Court requires any subsequent pleadings, it has powers to issue such direction. However, even such powers are subject to the provisions of Rule 10 of Order VIII CPC. 20. Thus, the learned trial Court is found to have committed no jurisdictional error in refusing to grant a blanket leave for introduction of a subsequent pleading. It is also seen that when a litigant has to satisfy the Court for amendment of pleadings, why a litigant would be permitted to raise any plea which they want in guise of subsequent pleadings filed under Rule 9 of Order VIII CPC. Therefore, if the rider of satisfying the Court on the nature of plea sought to be introduced by way of subsequent pleadings under Rule 9 of Order VIII CPC was not there, a litigant may start using the provisions of Rule 9 of Order VIII CPC to overcome the challenge they are required to meet for amending of the plaint or the written statement." 12. Thus, on the facts and circumstances of this case, we find that no case is made out by the petitioner so as to allow her to introduce additional pleadings under the provisions of Order VIII Rule 9 CPC in the form of additional written statement. 13. The matter relating to Petition No. 1102 is taken up now. In this regard, we have already indicated above that the trial before the learned Tribunal was concluded and the case was fixed for argument and at that stage, the Petition No. 1102 was filed. We are of the considered opinion that it is too well settled that the power under Order XVIII Rule 17 CPC cannot be used to fill up any omissions in evidence of witness who had already been examined. The said provision is only meant for recall of witness for further examination-in-chief or cross- examination or to place additional material or evidence. The Court may permit a party to recall witness or fresh evidence (i) where application is bona fide, (ii) leading additional evidence, oral or documentary, would assist court to clarify evidence on issues, (iii) such measure would assist the court in rendering justice, and (iv) if court is satisfied that earlier non- production was for valid and sufficient reasons. If these conditions are not present, it would be open for the Court to not entertain such a petition. If these conditions are not present, it would be open for the Court to not entertain such a petition. The power available under Order XVIII Rule 17 CPC is discretionary and should be used sparingly. If such power is used in a routine manner, it would defeat the very purpose of various amendments made to CPC for speedy trials. The said power can be invoked by the court to clarify doubts, if any, about evidence so that it can put questions and elicit answers. If one requires any authority on the said point, the case of Gayathri Vs. M. Girish, (2016) 14 SCC 142 may be referred to. 14. In the present case in hand, we find that the petitioner is seeking to introduce evidence by recall of witness, which was already available at the time when defence witnesses were examined. The documents, as indicated herein above, are neither new evidence sought to be introduced nor new facts discovered subsequently. Thus, it is apparent that only after cross examination of the witness that certain lapses in the evidence on the petitioner's side was noticed. The main purpose of Order XVIII Rule 17 CPC is to enable the Court, while trying a case, 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. If one requires any authority on the point, the case of Vadiraj Nagappa Vernekar (Dead) V. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 may be referred to. 15. The Petition No. 1102 was also filed under Order XVIII Rule 17A. In this regard, we find that the said provisions had been repealed by the Code of Civil Procedure (Amendment) Act, 1999 w.e.f. 01.07.2002. 16. In light of the discussions above, we are of the considered opinion that the learned Tribunal did not act contrary to law while rejecting the Petition Nos. 1101 and 1102 dated 10.08.2018 by the impugned order dated 01.10.2018. 17. As the Court is exercising supervisory jurisdiction and not appellate jurisdiction, no case is made out for substituting the opinion rendered by the learned tribunal with the view of the Court. 1101 and 1102 dated 10.08.2018 by the impugned order dated 01.10.2018. 17. As the Court is exercising supervisory jurisdiction and not appellate jurisdiction, no case is made out for substituting the opinion rendered by the learned tribunal with the view of the Court. This is not a case where the learned Tribunal had refused to admit admissible evidence or that its finding is dehors the evidence on record. 18. Hence, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost. 19. We are informed that the next date before the learned Tribunal is fixed today, i.e. 17.09.2019. Hence, the Registry shall make an endeavour to communicate the order to the learned Foreigners Tribunal No.3, Nalbari in connection with F.T. Case No. 147/2018.