Tamil Nadu Industrial Development Corporation, Rep. by its Chairperson and Managing Director v. Mohammed Ibrahim
2021-10-07
K.MURALI SHANKAR
body2021
DigiLaw.ai
ORDER : The Civil Revision Petition is directed against the co fair and decreetal orders, dated 07.12.2020 passed in I.A.Nos.12, 13 and 14 of 2020 in L.A.O.P.No.68 of 2002 on the file of the IV Additional District Judge, Tirunelveli, filed under Section 151 CPC for reopening the case, for recalling P.W.1 under Order 18 Rule 17 CPC and for reception of documents under Order 7 Rule 14(3) of the Code of Civil Procedure. 2. The revision petitioners are the respondents 2 and 3 in the Interlocutory Applications in I.A.Nos.12 to 14 of 2020 as well in the original petition in L.A.O.P.No.68 of 2002. The Respondents 1 to 4 herein/claimants have sought for reference under Section 18 of the Land Acquisition Act, 1894 in respect of the land acquired for the revision petitioners. 3. It is evident from the records that the fifth respondent has acquired 674.78 Hectares of lands in Therku Nanguneri Village, Rajakalmangalam Village, Puliyur Kurichi Village of Nanguneri Taluk, Tirunelveli District, for setting up of Hitech Industrial Park, under the Land Acquisition Act, 1984. The claim of the respondents 1 to 4 and others were taken on file in L.A.O.P.Nos.68, 79 and 80 of 2002. After enquiry, the learned Additional District Judge, Tirunelveli, has passed common award, dated 31.08.2003. Aggrieved by the said award, the first respondent/Land Acquisition Officer has preferred appeals in A.S.(MD) Nos, 191, 192 of 2008 and A.S.No.83 of 2009 before this Court. Since the revision petitioners 1 and 2 were not impleaded, this Court has passed an order, dated 08.05.2019, setting aside the award, dated 31.08.2003 and remanded the cases back to the trial Court for fresh consideration, after impleading the revision petitioners as respondents and after affording opportunity of hearing to all the parties. After the remand, evidence was adduced by both the sides and thereafter, when the cases are pending for arguments, the respondents 1 to 4/claimants have filed the above three applications, one in I.A.No.12 of 2020, under Section 151 CPC to reopen the case; 2nd petition in I.A.No.13 of 2020, under Order 18 Rule 17 CPC to recall P.W.1; and the third petition in I.A.No.14 of 2020, under Order 7 Rule 14(3) of CPC for reception of additional evidence. After enquiry, the learned Additional District Judge, has passed the impugned order, dated 07.12.2020, allowed all three petitions.
After enquiry, the learned Additional District Judge, has passed the impugned order, dated 07.12.2020, allowed all three petitions. Aggrieved by the said orders, the respondents 2 and 3 in the interlocutory applications as well as in the original petition have preferred the present revision. 4. Before entering into further discussion, it is time to refer the legal position. The learned counsel for the revision petitioners has relied on the decision of Hon'ble Supreme Court in Vadiraj Nagappan Vs. Sharachandra Prabhakar reported in 2009 (4) SCC 410 and the relevant passages are reproduced hereunder; “25.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. .... .... .... 28. 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. 29. 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.” 5. It is also necessary to refer the judgment of Hon'ble Apex Court in K.K.Velusamy Vs. N.Palanisamy reported in 2011(11) Supreme Court Cases 275, wherein the Vadiraj Nagappan's case was also referred. “8.
It is also necessary to refer the judgment of Hon'ble Apex Court in K.K.Velusamy Vs. N.Palanisamy reported in 2011(11) Supreme Court Cases 275, wherein the Vadiraj Nagappan's case was also referred. “8. 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 - 2009 (4) SCC 410 ]. 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.” 6. The Hon'ble Supreme Court while dealing with the power of the Courts under Order 18 Rule 17 CPC, in Ram Rati Vs. Mange Ram (D) Lrs and others reported in 2016 5 CTC 555, has held as follows: “11. The respondent filed the application under Rule 17 read with Section 151 of the CPC invoking the inherent powers of the court to make orders for the ends of justice or to prevent abuse of the process of the court.
Mange Ram (D) Lrs and others reported in 2016 5 CTC 555, has held as follows: “11. The respondent filed the application under Rule 17 read with Section 151 of the CPC invoking the inherent powers of the court to make orders for the ends of justice or to prevent abuse of the process of the court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. ‘No prejudice is caused to either party’ is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground.” 7. Now coming to the petition filed under Order 7 Rule 14(3) CPC, it is necessary to refer the judgment of Division Bench of this Court in Punjab & Sind Bank Vs. Dewa Properties Limited reported in 2019 (3) CTC 737 and the relevant passages are extracted hereunder. “27. We find that the application to introduce additional evidence was filed by the appellant belatedly in the year 2018 and therefore, the appellant was not diligent. The suit was filed in the year 2004. The trial was completed in the year 2012 and evidence was closed. The appellant waited for another 6 years to lapse. Thereafter, the appellant filed the above application to mark additional documents. 28. The learned Single Judge in our view has rightly refused to exercise the discretion in favour of the appellant.
The suit was filed in the year 2004. The trial was completed in the year 2012 and evidence was closed. The appellant waited for another 6 years to lapse. Thereafter, the appellant filed the above application to mark additional documents. 28. The learned Single Judge in our view has rightly refused to exercise the discretion in favour of the appellant. As a plaintiff, the appellant ought to have laid the suit based on the documents that were in its possession or at its head office. In case, it did not have such document, the appellant should have reserved the right under Order VII Rule 14 (2 ) of the CPC. On the other hand, the appellant has stated nil under the list of document in the plaint under the aforesaid provision. 29. Further, Order VII Rule 14 of CPC indicates that the plaintiff can introduce documents which were not in possession at the time of filing this suit only with leave of the Court, In this case, this is not the case. The appellant cannot mark documents which were in its possession but were not filed along with the plaint. Marking of additional documents which were neither specified in the plaint nor in contemplation at the time of filing of the suit but in possession of the plaintiff is not permissible except under Order VII Rule 14(4) during cross examination of the defendant.” 8. Now turning to the petition filed under Section 151 CPC to reopen the case, the learned counsel for the revision petitioners has relied on the decision of Vadiraj Nagappan's case cited supra and the relevant passages are extracted hereunder : “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.
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. 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.” 9. Bearing the above legal position in mind, let us consider the case on hand. The case of the respondents/ claimants raised in the above interlocutory applications is that the main case was posted to 19.01.2020 for advancement of arguments by both sides, that the claimants had misplaced some documents in their house and they could not trace out the same, that since they have traced out the same, they should be permitted to adduce further documentary evidence, that no prejudice will be caused to the other side, if the applications are allowed and that the claimants would suffer irreparable loss and hardship, if the petitions are not allowed. 10.
10. The defence of the revision petitioners is that the petitioners' inability to trace the documents in their house has been shown as the only reason for not producing the same, that the Court did not call the witness for examination and the provision of Order 18 Rule 17 CPC does not enable the petitioner to seek recalling of witness, that the claimants cannot invoke Section 151 of CPC so as to nullify the intention of the legislature to discourage adducing of oral and documentary evidence after the trial has been commenced and that since the trial was already over, the question of invoking Order 7 Rule 14(3) CPC does not arise and that therefore, all the petitions are liable to be dismissed. 11. As already pointed out, the respondents 1 and 2 have laid the claim petition seeking compensation for the lands acquired by the fifth respondent herein for the revision petitioners. It is not in dispute that the learned Additional District Judge, after recording the evidence adduced by both the sides and after hearing the arguments of both the parties, has passed a common award dated 31.08.2003. The 5th respondent herein, not satisfied with the award, has preferred appeals before this Court. As already pointed out, since the revision petitioners were not impleaded, the matter was remitted back to the trial Court for determining the compensation and to dispose of the claim petitions, after impleading the revision petitioners and after affording opportunities for all the parties. 12. It is also not in dispute that the after remand, the claimants have adduced their side evidence followed by the evidence of the 5th respondent side/Land Acquisition Officer and thereafter by the revision petitioners; and only after completion of evidence, the case was posted for arguments and at that time, the above petitions came to be filed. 13. As rightly contended by the learned counsel for the revision petitioners, through the applications, the claimants are seeking permission to adduce third round evidence. More importantly, the claim petitions were taken on file in the year 2002 and already 19 years had lapsed. The claimants have sought to produce the documents, Solvency Certificate, Legal Heirs certificates, 10(1) Adangal, Revenue Record, Primary Agricultural Co-operative Bank Receipts, SRO copies of the Documents to show the valuation of the lands, Court Notice, Village Map, Death Certificates and Cultivation certificate. 14.
The claimants have sought to produce the documents, Solvency Certificate, Legal Heirs certificates, 10(1) Adangal, Revenue Record, Primary Agricultural Co-operative Bank Receipts, SRO copies of the Documents to show the valuation of the lands, Court Notice, Village Map, Death Certificates and Cultivation certificate. 14. As already pointed out, the only reason canvassed by the claimants is that they were unable to trace out the said documents at the time of filing the claim petition and that since they have now traced out the same, they were filing the same to prove their case. As rightly pointed by the learned counsel for the revision petitioners, during cross examination of the claimant/P.W.1, he would admit that he was having the solvency certificate in his house and that he is ready to produce the same as and when directed. But in the affidavit filed in support of the petition in I.A.No.14 of 2020, he has stated that he did not remember the place where the said documents were kept in the house and hence, he could not produce the same at the time of filing the main petition. 15. As rightly contended by the learned counsel for the revision petitioners, though the claim petition was laid in the year 2002, they have traced out the records only in the year 2020 and as such, the reason canvassed by the claimants is hard to believe. Admittedly, the claimants have not advanced any other reasons or grounds either to reopen the case or to recall P.W.1 for further examination. 16. As already pointed out, the Hon'ble Apex Court in Ram Rati's case, has specifically held that 'no prejudice would be caused to either party' is also not a permissible ground to reopen the case or to recall the witnesses. Moreover, witness cannot be recalled to fill up the omission in the evidence already let in nor for the parties for filling up lacuna in the evidence. 17. As rightly contended by the learned counsel for the revision petitioners, when the Revenue Official was in the witness box, the claimants should have produced and shown the documents now sought to be produced, as he is the competent authority to say about the genuineness and the contents of the said documents.
17. As rightly contended by the learned counsel for the revision petitioners, when the Revenue Official was in the witness box, the claimants should have produced and shown the documents now sought to be produced, as he is the competent authority to say about the genuineness and the contents of the said documents. The learned trial Judge, by observing that most of the documents sought to be produced are given by the Revenue Department and that since the other side is having chance to cross examine the witness with respect to the documents produced, allowed the petitions. Though the learned trial Judge has referred the decision of the Hon'ble Supreme Court in Vadiraj Nagappan's case relied on by the learned counsel for the revision petitioners' side, he has relied four lines in another passage to sustain his order permitting recall of the witness. The learned trial Judge, without considering the legal position in proper perspective, has casually allowed the petitions. 18. Considering the above, this Court has no hesitation to hold that the impugned orders are not good in law and the same are liable to be set aside. 19. Now turning to the technical objections raised by the learned counsel for the claimants that a single revision petition challenging the three decreetal orders is legally not maintainable. Admittedly, the revision petitioners have filed a single Civil Revision Petition, challenging the common fair order, invoking the jurisdiction of this Court under Article 227 of the Indian Constitution. 20. As rightly contented by the learned counsel for the claimants, though the learned trial Judge passed a common fair order, he has passed three separate decreetal orders and as such, normally separate revisions are to be filed challenging each and every decreetal orders. As already pointed out, the petitioners have filed the above revision under Article 227 of the Constitution. The learned counsel for the revision petitioners would submit that this Court is having supervisory powers over the Subordinate Courts and even in the absence of any revision petition, this Court can even take up suo motu on any matter and pass orders. 21. The Hon'ble Supreme Court in Surya Dev Rai Vs.
The learned counsel for the revision petitioners would submit that this Court is having supervisory powers over the Subordinate Courts and even in the absence of any revision petition, this Court can even take up suo motu on any matter and pass orders. 21. The Hon'ble Supreme Court in Surya Dev Rai Vs. Ram Chander Rai and others reported in 2003(6) SCC 675 , has held that it is well settled that the power of superintendence so conferred on the High Court under Article 227, is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu and that the paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. 22. It is settled law that the power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. This Court in Annapoorni Vs. Janaki reported in 1995 (1) L.W. 147, while dealing with the power of superintendence of the High Court under Article 227 of the Indian Constitution, has held that it is not only administrative but also judicial. In New India Assurance Company Limited Vs. Rakesh Bhai, reported in 1997 (5) SCC 510 , the Hon'ble Apex Court has held that the procedure or technical objections should not frustrate the course of justice. It is necessary to refer the following passage in the judgment of this Court passed in M.Parimanam @ Parimana Konar vs T. Egammai in (C.R.P.(MD)No.122 of 2016 (NPD) and C.M.P(MD)Nos.552 to 554 and 1624 & 1625 of 2016). “17.Courts can invoke the power under Article 227 of the Constitution; (a) to prevent abuse of process of law; (b) to prevent miscarriage of justice; (c) to prevent grave injustice; (d) grave dereliction of duty or flagrant violation of law or error of law apparent on the face of the record; and (e) arbitrary exercise of authority or discretion.” 23. As already pointed out, the trial Court without considering the settled legal position has committed error warranting this Court to invoke the power under Article 227 of the Constitution.
As already pointed out, the trial Court without considering the settled legal position has committed error warranting this Court to invoke the power under Article 227 of the Constitution. Even assuming for arguments sake that since a single revision petition is filed, the same is to be taken for challenging the first order passed in I.A.No.12 of 2020, since the other orders were also brought to the notice of this Court, under Article 227 of the Indian Constitution, this Court is duty bound to consider the legality, propriety or correctness of the orders of the Court below. 24. Considering the above, this Court concludes that the revision petition is to be allowed and the impugned common order and decreetal orders passed in I.A.Nos.12, 13 and 14 of 2020, dated 07.12.2020, on the file of the IV Additional District Judge, Tirunelveli, are liable to be set aside. Considering the fact that the claim petitions are pending from 2002 onwards, this Court is of the view that necessary directions are to be issued for early disposal of the petition. 25. In the result, the Civil Revision Petition is allowed and the impugned common order and decreetal orders passed in I.A.Nos.12, 13 and 14 of 2020, dated 07.12.2020, on the file of the IV Additional District Judge, Tirunelveli, are set aside. The learned IV Additional District Judge, Tirunelveli, is directed to dispose of the petition in L.A.O.P.No.68 of 2002, within a period of two months from the date of receipt of copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.