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2024 DIGILAW 839 (GUJ)

Vasantiben D/o Vala Makan v. Maganbhai Chelabhai

2024-04-09

SANDEEP N.BHATT

body2024
ORDER : 1. The present petition is preferred by the petitioner being aggrieved and dissatisfied with the order dated 12.10.2018 below Exh.135 in Special Civil Suit No.108 of 2005 passed by the learned 12th Additional Senior Civil Judge, Surat, whereby, the present petitioner - plaintiff was allowed to be cross-examined. 2. Brief facts of the case, are as under: 2.1 For sake of convenience, the parties are referred to in their original status as plaintiff and defendants. That the petitioner preferred Special Civil Suit No.108 of 2005 against the respondents/orig. defendants in respect of land of revenue survey no.762/3, admeasuring 5665 sq. mtrs of village Dumas, Dist: Surat, for declaration, injunction and for challenging the sale deeds, as prayed for in the plaint. 2.2 That the defendants have filed written statement in the suit. That at the stage of injunction application, the matter reached till this Honourable Court and the appeals being AO no: 320 of 2005 and AO no: 325 of 2005, were disposed of by this Honourable Court vide order dated: 29.11.2005, whereby the order dated: 22.8.2005 passed by the Ld. Trial judge confirming the injunction in terms of para 13(1) of the application was modified by directing the parties to maintain status-quo, till the disposal of the suit. That issues are framed vide Exh.29 on around 17.9.2010. That on around 2.11.2010, the defendant no.1 preferred an application Exh.38, praying for issuance of witness summons to the 'Court duty Constable', DCB police station, mainly for the purpose of producing the FSL report on the record of the case. The said application came to be rejected on 26.7.2011, essentially on the ground that this was a public document and the certified copy of the same can be obtained by the defendant from the concerned court by payment of requisite fees. The defendant no.1 thereafter, preferred an application Exh. 44 on around 3.8.2011, contending that though application was preferred before the court of Chief Judicial Magistrate for obtaining copy of FSL report, however, an endorsement was made on application that such a report of FSL has not been produced before the Ld. Chief Judicial Magistrate and it was prayed that witness summons be issued to the PI, DCB police station for the purpose of producing the report of FSL on record. That vide order dated 7.2.2012, the said application Exh.44 also came to be rejected. Chief Judicial Magistrate and it was prayed that witness summons be issued to the PI, DCB police station for the purpose of producing the report of FSL on record. That vide order dated 7.2.2012, the said application Exh.44 also came to be rejected. The said order below Exh.44 came to be challenged by the defendant no. 1 before this Honourable Court in SCA no. 4223 of 2012. That vide order dated 11.6.2012, the said petition came to be dismissed with certain observations to the effect that; "...However, so as to ensure that in future, right of the present petitioner is not jeopardized and it is not left in the realm of ambiguity, it is clarified that the petitioner shall be within his right to request for issuance of witness summons; production of FSL report at the stage of oral evidence and the order impugned shall not, in any manner, cause an impediment in pursuing such a request. With these observations the present writ petition stands dismissed in limine. Rule is discharge within no order as to costs". It was further observed that "In the event of defendant finding it necessary to further cross examine the plaintiff, in wake of production of the documents at the stage of defendant's evidence, a request can be made by preferring an application to that effect and the Court shall duly consider the same, keeping in mind the chain of events which have been narrated hereinabove." 2.3 That on around 17.10.2011, the examination in chief of the plaintiff was produced vide Exh.46, whereas, the cross examination was over on 26.11.2012. That the defendant no.1 produced examination-in-chief vide Exh.98 on around 16.3.2015. That thereafter, again the defendant no.1 preferred an application Exh.125 praying for issuance of witness summons to the PI, DCB police Station mainly for the purpose of producing FSL report of M. Case no.7 of 2005. The same was opposed to by the petitioner-original plaintiff by reply vide Exh. 126. That subsequent thereto, the defendant no.1 preferred application Exh.130 praying for issuance of witness summons to the court clerk of for producing the documents stated therein of criminal case no. 103365 of 2005. It transpires that subsequent thereto, on around 24.4.2018, the defendant no: 1 produced FSL report vide mark-132/8. 126. That subsequent thereto, the defendant no.1 preferred application Exh.130 praying for issuance of witness summons to the court clerk of for producing the documents stated therein of criminal case no. 103365 of 2005. It transpires that subsequent thereto, on around 24.4.2018, the defendant no: 1 produced FSL report vide mark-132/8. That subsequent thereto, the defendant no.1 preferred an application Exh.135 praying for recall of the plaintiff for the purpose of cross examination by showing the documents produced vide list mark-132. The plaintiff opposed the said application. That subsequent thereto, vide order dated 12.10.2018, the application Exh.135 for recalling the plaintiff for the purpose of cross-examination, came to be allowed. 3. Heard learned advocate Mr. Amit Thakkar with learned advocate Mr. Rutul P. Desai for the petitioner and learned Senior Advocate Mr. Dhaval Dave with learned advocate Mr. A.B.Munshi for the respondent No.1. 4. Learned advocate Mr. Amit Thakkar for the petitioner has contended that the impugned order dated 12.10.2018 is passed by the trial Court below Exh.135, whereby, the trial Court has allowed the application for recalling the plaintiff, which is not required under any provision of law and the concerned Court has passed that order by misinterpreting the earlier order dated 11.06.2012 passed by the Coordinate Bench of this Court in Special Civil Application No.4223 of 2012, whereby, the Coordinate Bench of this Court has made some observation at page No.11 of that order, which is sought to be relied by the trial Court while passing the impugned order and the same is not in-consonance with the provisions of law. He has further submitted that the trial Court has not independently examined the application below Exh.135 and has not come to its own conclusion after verifying the material available on record and has committed error in granting the application. 4.1 He has also further contended that in view of the provisions of Sections 137 and 138 of the Indian Evidence Act, 1872, the impugned order passed by the trial Court below Exh.135 is erroneous and bad in the eye of law and the same is required to be interfered with by this Court. He has further submitted that the trial Court has not considered the fact properly that the observation made by this Hon’ble Court while dismissing S.C.A. No.4223 of 2012, as direction, and on that ground has proceeded to allow the application below Exh.135. He has further submitted that the trial Court has not considered the fact properly that the observation made by this Hon’ble Court while dismissing S.C.A. No.4223 of 2012, as direction, and on that ground has proceeded to allow the application below Exh.135. He has further submitted that the trial Court ought to have examined the application in light of the provisions of Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (C.P.C.) and if case is made out under that provision, it is permissible to recall the plaintiff for the purpose of cross-examination, more particularly, when there is no further examination-in-chief after the cross-examination is over, that aspect is not properly considered by the trial Court and therefore, he prays to allow this petition by interfering with the impugned order passed by the trial Court and submitted that, the Court may consider accordingly while granting interim relief in the matter. 5. Per contra, learned Senior Advocate Mr. Dhaval Dave appearing for the respondent has submitted that several attempts were made to place the FSL Report on record. It transpires from the record that such applications were not allowed by the trial Court and it is also found that the FSL Report is not available on the record of Police, which is a relevant document for resolving the controversy between the parties. He has further submitted that in the earlier round of litigation when one of the order, whereby, the prayer as sought in the petition was not granted in SCA No.4223 of 2012, but while dismissing that petition, the Hon’ble Court has kept in mind the future aspect of the matter and has observed on page no.11 that “in the event of defendant finding it necessary to further cross examine the plaintiff, in wake of production of the documents at the stage of defendant’s evidence, a request can be made by preferring an application to that effect and the Court shall duly consider the same, keeping in mind the chain of events which have been narrated hereinabove”. Therefore, he has submitted that accordingly when it is found necessary, the application is filed to cross-examine the plaintiff and the same is allowed by giving cogent and convincing reasons by the trial Court and therefore, no interference is called for. He has also relied on the judgment of the Hon’ble Apex Court rendered in the case of Mohd. Therefore, he has submitted that accordingly when it is found necessary, the application is filed to cross-examine the plaintiff and the same is allowed by giving cogent and convincing reasons by the trial Court and therefore, no interference is called for. He has also relied on the judgment of the Hon’ble Apex Court rendered in the case of Mohd. Yunus vs. Mohd. Mustaqim and others reported in (1983) 4 SCC 566 and more particularly, referring to para 7 of that judgment, he has submitted that in exercise of the supervisory power under Article 227 of the Constitution of India, High Court does not act as an Appellate Court or Tribunal, it will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision. Therefore, he submits that the present petition is required to be dismissed. 6. I have considered the rival submissions made at the bar and also considered the fact that several applications were filed to produce the report of FSL on record, whereby, it transpires that one application was allowed. Being aggrieved and dissatisfied with that, the present petitioner has challenged that order by way of S.C.A. No.4223 of 2012, whereby, the order of the trial Court permitting the production of the FSL Report is challenged. The said proceeding came to be decided by this Hon’ble Court vide order dated 11.06.2012, whereby, this Hon’ble Court has dismissed that petition and has observed on page Nos.10, 11 and 12 of that order, as under: “As could be noted, from the beginning, it is the case of the plaintiff respondent no. 1 that the document of sale deed is bogus, and therefore, it is not for the first time on the examination-in-chief that a new case has been put forth by the respondent no. 1 which requires to be met with prior to cross examining her by bringing forth such a document. The petitioner herein appears to be justified in its insistence for bringing the report of FSL on the record to substantiate his defense and it may not be denied its right to so do, at an appropriate stage. In the opinion of this Court, the trial court has struck balance; whereby there is no blanket denial to such a request. The petitioner herein appears to be justified in its insistence for bringing the report of FSL on the record to substantiate his defense and it may not be denied its right to so do, at an appropriate stage. In the opinion of this Court, the trial court has struck balance; whereby there is no blanket denial to such a request. Under the circumstances, the order impugned requires no interference at this stage and this petition deserves no entertainment. However, so as to ensure that in future, right of the present petitioner is not jeopardized and it is not left in the realm of ambiguity, it is clarified that the petitioner shall be within his right to request for issuance of witness summons; production of FSL report at the stage of oral evidence and the order impugned shall not, in any manner, cause any impediment in pursuing such a request. With these observations the present writ petition stands dismissed in limine. Rule is discharged with no order as to costs. In the event of defendant finding it necessary to further cross examine the plaintiff, in wake of production of the documents at the stage of defendant's evidence, a request can be made by preferring an application to that effect and the Court shall duly consider the same, keeping in mind the chain of events which have been narrated hereinabove.” 7. It transpires that pursuant to that, an application came to be filed below Exh.135 in Special Civil Suit No.108 of 2005, which was considered by keeping in mind the directions given by this Hon’ble Court in S.C.A. No.4223 of 2012. It is fruitful to refer to the provisions of Order XVIII Rule 17 of the C.P.C., which reads as under: “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 questions to him as the Court thinks fit.” 8. Considering the fact that the trial Court has considered the order of the Coordinate Bench of this Court, which is not successfully challenged before the higher forum. Considering the fact that the trial Court has considered the order of the Coordinate Bench of this Court, which is not successfully challenged before the higher forum. The observations made in that order are binding to the trial Court and the trial Court has taken into consideration those observations as well as the provisions of law and passed the order, which is found to be a well-reasoned order. The trial Court has come to the specific conclusion by observing that it is duty of the plaintiff also to bring the best evidence on record for the adjudication of the controversy and therefore, in view of the discussion, the trial Court has allowed the application and has granted permission to cross-examine the plaintiff. I found that the trial Court has applied its mind in proper context by considering the material available on the record and by keeping in mind the observations made by this Hon’ble Court. I found that the discretion used by the trial Court is in judicious manner and that there is no infirmity, illegality or any jurisdictional error in the impugned order of the trial Court, neither the findings of the trial Court shall be considered as perverse and therefore, no interference is called for under Article 227 of the Constitution of India by considering the judgment of Hon’ble Apex Court in case of Mohd. Yunus vs. Mohd. Mustaqim and others reported in (1983) 4 SCC 566 , more particularly, para no.7, which reads as under: “7. The supervisory jurisdiction conferred on the High Courts udder Art. 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art.227, the High Court does not act as an Appellate Court or Tribunal. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art.227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.” 9. Furthermore, at this stage, it is apt to refer to the judgment of the Hon’ble Apex Court in the case of Garments Craft vs. Prakash Chand Goel reported in (2022) 4 SCC 181 , more particularly, paragraph Nos.15 to 17 are relevant, which read as follows: “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.1 The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:- “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:- “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” 17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex- parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution.” 10. In view of the foregoing discussion, the present petition is found meritless and the same is required to be dismissed. 11. Accordingly, the present petition stands dismissed with no order as to costs. Notice is discharged. Interim relief, if any, granted earlier stands vacated.