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2019 DIGILAW 843 (JHR)

Rajeev Kaul v. Manju Kumari

2019-04-09

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is under Article 227 of the Constitution of India, wherein, the order dated 18.11.2017, passed in a Money Suit No.20 of 2007 by the Civil Judge, Senior Division, VI, Jamshedpur is under challenge, whereby and whereunder the documents filed by the plaintiff without any affidavit has been allowed to be accepted and date has been fixed for cross-examination of the plaintiff upon the aforesaid documents. 2. The brief facts of the case of the petitioners is that the plaintiff/respondent has filed a suit for recovery of damages in terms of law of Tortious liability in which the petitioners/defendants have appeared and filed written statement and thereafter suit has proceeded. The petitioners have filed subsequent list of documents, but, without any affidavit, therefore, an objection was filed by the defendants on the ground that the aforesaid documents may not be accepted, since it has been filed without following the provisions of law, as stipulated under Order 23 Rule 4 (1) read with Order 19 of the Code of Civil Procedure and contrary to Sections 61 to 67 of the Indian Evidence Act and further, the aforesaid documents have been filed after filing of the suit i.e. after 12.06.2007, which cannot be accepted by way of evidence and therefore, the documents filed on 22.04.2013 may be rejected but the trial court after recording the reason to the effect that the said documents have been brought on record with the leave of the court and therefore, even though there was some delay, but, by imposing cost of Rs.5,000/-, the documents have been allowed to be brought on record and has provided an opportunity to the defendants to cross-examine the plaintiff and accordingly, posted the trial for her cross-examination against which the present writ petition has been filed by the petitioners/defendants, inter alia, on the ground that the procedure for filing the documents, has been provided under the provision of Order XVIII sub-rule 4, which contains the provision for filing of documents, which is to be filed with the affidavit of examination in chief, but, having not done so, the said document is not admissible. 3. 3. Learned counsel appearing for the plaintiff/respondent has appeared and contested the case by submitting that there is no error in the impugned order, since the documents, which has been sought to be brought on record, has been admitted on record with the leave of the Court, but the order by which, the leave has been recorded, has never been assailed by the petitioners. The petitioners will not be prejudiced in any way, since they have been provided an opportunity to cross- examine the plaintiffs on these documents and, as such, merely on the technicality, since the said documents have not been filed on affidavit, the same is not to be rejected, otherwise, it will be said to be the hyper-technical approach by the trial court and therefore, the Court while rejecting the application of the petitioners, has committed another error for proper adjudication of the issue involved. 4. Heard the learned counsel for the parties and on appreciation of their rival submissions, this Court thinks it fit and proper first to come to the provision of Order XVIII Rule 4 (1) of the Code of Civil Procedure before entering into the legality and propriety of the finding recorded in the impugned order, which is necessary to peruse for the just adjudication of the matter. The aforesaid provision reads hereunder as:- "Order XVIII Rule 4. Recording of evidence- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence: Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the Court." Rule 4 (1) of Order XVIII, as it originally existed, provided for recording of evidence of a witness in open court, subsequent thereto, since it involves a long drawn process and therefore, the same was substituted by the Amendment Act of 1949 by providing that examination in chief of a witness shall be given by an affidavit and cross-examination, re-examination etc. by commission. The aforesaid provision was substituted again by the Amendment Act 22 of 2002. The change provided that the evidence in cross-examination and re-examination shall be taken either by the Court or by the Commissioner appointed by it. by commission. The aforesaid provision was substituted again by the Amendment Act 22 of 2002. The change provided that the evidence in cross-examination and re-examination shall be taken either by the Court or by the Commissioner appointed by it. Earlier, such examination was directed to be made only by a Commissioner. The examination in chief of a witness shall be recorded on affidavit, the cross-examination and re-examination of witness in the High Courts, having original jurisdiction shall be recorded ordinarily by the Commissioner and in courts, subordinate to the High Court, such evidence shall be recorded either by the Court or by the Commissioner appointed by it. The prime object of amending Order XVIII Rule 4 of the Code of Civil Procedure is to minimize the delay in recording evidence as well as dispensing with the lengthy procedure of the Court for recording evidence of every witness produced before it or summon to appear before it. So far as the factual aspect involved in this case is concerned, it is evident from the impugned order that a Money Suit was filed by the respondent/plaintiff in the year 2007, wherein a claim of Rs.15 lacs have been sought to be recovered. The issues have been framed on 29.03.2011. The evidence of the plaintiffs witness no. 1, namely, Pankaj Kumar Singh and the plaintiffs witness no. 2, namely, Rajesh Kumar Singh has been recorded by way of affidavit on 09.09.2011 and 19.09.2011, who have been cross-examined. The other witnesses of the plaintiff have been examined on 19.09.2011, who has also been examined. The third witness, namely, Kishore Kumar Singh has been examined on 18.04.2011 on oath, who has also been cross- examined. 2, namely, Rajesh Kumar Singh has been recorded by way of affidavit on 09.09.2011 and 19.09.2011, who have been cross-examined. The other witnesses of the plaintiff have been examined on 19.09.2011, who has also been examined. The third witness, namely, Kishore Kumar Singh has been examined on 18.04.2011 on oath, who has also been cross- examined. The evidence has been filed on oath on 22.11.2011 and a list of documents have also been filed upon which the petition was posted for rejoinder, the rejoinder has been filed on 04.01.2012, but the aforesaid list of documents have been accepted vide order dated 26.03.2012 on the cost of Rs.500/- and thereafter, the matter was posted for cross-examination of the plaintiff, but, she has not been cross-examined and then a petition was filed on 02.05.2013, making therein, objection with respect to the documents, which has been filed without any affidavit but the trial court has rejected the same on the ground that the said document has been brought on record vide passing an order in this regard on 26.03.2012 and further on the ground that the petitioners/defendants will get an opportunity to cross- examine the plaintiffs on the aforesaid documents and hence, rejected the said petition and posted the case for cross-examination. Now the question, which has been raised by the petitioners that the aforesaid documents have not been filed by affidavit and therefore, the provision of Order XVIII Rule 4 (1) has not strictly been complied with, hence, the trial court has committed an error. It is not in dispute that the provision of Order XVIII Rule (4) (1) has been inserted under the Statute in view of the amendment made by way of Act of 22 of 2002 with effect from 01.07.2002, by which, it has been provided that examination in chief of a witness shall be on affidavit and copies thereof shall be supplied to the Opposite party by the party, who calls him for evidence. 5. This Court is to examine if the documents have been filed without any affidavit, whether the same can be discarded, even if the trial court has found the said documents necessary for the proper adjudication of the dispute involved. 5. This Court is to examine if the documents have been filed without any affidavit, whether the same can be discarded, even if the trial court has found the said documents necessary for the proper adjudication of the dispute involved. It is settled position of law that in technicality, the documents, if it appears to the Court, is relevant for proper adjudication, may not be discarded, if no prejudice is being going to be caused to the other side and prejudice will only be caused, if no opportunity to rebut the said document will be provided. Here, in the instant case, as has been recorded by the trial court that the documents have been accepted by the trial court vide order dated 26.03.2012, the aforesaid order has never been questioned by the petitioners/defendants, rather, for the first time, an objection was made on 02.05.2013 in this regard. 6. The question now would be that when the documents have been brought on record by passing a judicial order by the trial court and if the said order has been accepted by the petitioners/defendants, can he be allowed to raise objection subsequent thereto. The answer would be certainly in negative. It is for the reason that when an order has been passed on an application made by the respondents/plaintiffs seeking leave of this Court to bring on record certain documents that too without any condition, rather, by list of documents, but, rightly or wrongly, it has been allowed and incorporated on record and therefore, it was incumbent upon the trial court to go through it for proper adjudication of the issue involved and before going to it and before placing reliance upon it, it is necessary to provide an opportunity for rebuttal to the Opposite party. 7. The petitioners, admittedly, have not questioned the order dated 26.03.2012 and after accepting the same, the objection to the same effect has been made and therefore, the trial court has rightly rejected the said petition. Further, the petitioner is not going to be prejudiced in any way, since because even in spite of several adjournments for cross-examining the plaintiffs, had not been cross-examined and, as such, the trial was at the stage of cross-examination of the plaintiffs and therefore has provided an opportunity to the defendants to cross-examine the witnesses also on these documents. 8. Further, the petitioner is not going to be prejudiced in any way, since because even in spite of several adjournments for cross-examining the plaintiffs, had not been cross-examined and, as such, the trial was at the stage of cross-examination of the plaintiffs and therefore has provided an opportunity to the defendants to cross-examine the witnesses also on these documents. 8. It is evident from the provision as contained in Order XVIII Rule 4 (1) of the Code of Civil Procedure, which permits a party to rely upon such documents, as are filed alongwith the affidavit. It appears from the provision of Order XVIII Rule 4 (1) of the Code of Civil Procedure, which makes it abundantly clear that while recording the evidence, the witness shall produce copies of the documents, which ought to be supplied to the Opposite Party. If such documents are filed and parties rely upon the documents, the proof and admissibility of such documents, which are filed alongwith the affidavit shall be subject to the orders of the Court. 9. It is evident that this provision of law cannot be construed to mean that those documents, which are not produced alongwith the affidavit, as examination in chief, cannot be relied upon by a party. No doubt, admissibility or proof or otherwise of such a document will always be subject to the discretion of the Court. The prime object of the provision is to make the opponent aware of the documents, sought to be relied upon by a party, producing such documents and therefore, plea which has been taken by the petitioners, if accepted, it will lead to miscarriage of justice and interfering with the judicial conscience of the trial court, who has taken such decision vide order dated 26.03.2012, which has not been questioned by the petitioners considering the relevance of the aforesaid documents for proper adjudication of the issue involved. 10. In view of the entirety of the facts and circumstances and for the reason recorded, according to the considered view of this Court, this case is not falling under the category warranting interference under Article 227 of the Constitution of India. 11. This Court also intends to go through the scope of Article 227 of the Constitution of India. Dealing with the scope of Article 227 of the Constitution of India, Honble Apex Court in the case of Shalini Shyam Shetty Vrs. 11. This Court also intends to go through the scope of Article 227 of the Constitution of India. Dealing with the scope of Article 227 of the Constitution of India, Honble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Honble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the courts discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Courts power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. 12. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. 13. Further, in the aforesaid judgment the Honble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. 14. The Honble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. 15. Further, the judgment rendered by the Honble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. 14. The Honble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. 15. Further, the judgment rendered by the Honble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. 16. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. 17. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. 18. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. 18. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. 19. In view of the limited scope of the Article 227 of the Constitution of India, as discussed, hereinabove and for the reason recorded, therein, in the considered view of this Court, this Court is not inclined to interfere in the impugned order. 20. Accordingly, the writ petition fails and is dismissed. 21. Consequently, I.A. No. 1373 of 2019 also stands disposed of.