THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
C.R.P Nos.1531, 1532, 1533, 1534, 1535 and 1549 of 2014
Dated 20th June, 2014
Between:
Virothi Tirupathi Rao S/o Appa Rao.
…Petitioner And Kota Venu, S/o Jaggu Naidu … Respondent
THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
C.R.P Nos.1531, 1532, 1533, 1534, 1535 and 1549 of 2014 COMMON ORDER:
First defendant in O.S.No.1 of 2010, on the file of the Court of the Principal District Judge, Srikakulam is the petitioner in all these revisions. Since all these Civil Revision Petitions arise out of one suit and as the petitioner in all these revisions is one and the same, this Court deems it appropriate to dispose of these revisions by way of this common order.
2. Heard Sri Akkam Eshwar, learned counsel for the petitioner and Sri S.Srinivasa Rao, learned counsel for the respondent apart from perusing the material available on record.
3. CRP.No.1531/2014 is filed against the order dated 29.04.2014, dismissing I.A.No.431/2014 filed by the petitioner under Order 16 Rules 1 and 6 read with Section 151 of Code of Civil Procedure seeking to issue summons to the Regional Transport Officer, Srikakulam for production of the documents viz., (1) Application filed by Kota Venu S/o Jaggu Naidu for registration of motor cycle Super Splendor bearing No.AP 30 N 4425 and (2) The requisite identity proof of residence documents such as ration card etc., placed by Kota Venu s/o Jaggu Naidu for registration of motor cycle Super Splendor and to give evidence on behalf of the petitioner.
4. CRP.1532/2014 is filed against the order dated 29.04.2014, dismissing I.A.No.432/2014 filed by the petitioner under Order 16 Rules 1 and 6 of Code of Civil Procedure to issue summons to the Commissioner, Amadalavalsa Municipality, Srikakulam District for production of the documents viz., (1) As per municipal records the owner of the house bearing D.No.7-1-207, Pathinivanipeta Veedhi, Amudalavalsa Municipality, Srikakulam District; (2) Assessment of property tax pertaining to D.No.7-1-207 of its Asst No.1082000893; (3) The payment of property tax paid by whom from 2002 to 2014 pertaining to D.No.7-1-207 of its Asst.No.1082000893 of Pathinivanipeta Veedhi, Amudalavalasa Municipality, Srikakulam District; and (4) The nature of construction of the house bearing D.No.7-1-207, Pathinivanipeta Veedhi, Amudalavalasa, Municipality, Srikakulam District and to give evidence on behalf of the petitioner.
5. CRP.1533/2014 is filed against the order dated 29.04.2014, dismissing I.A.No.434/2014 filed by the petitioner under Order 18 Rule 17 read with Section 151 of Code of Civil Procedure to recall PW.1/sole plaintiff Mr.Kota Venu for further examination by the petitioner.
6. CRP.No.1534/2014 is filed against the order dated 29.04.2014, dismissing I.A.No.443/2014 filed by the petitioner under Order 8 Rule 1 (3) read with Section 151 of Code of Civil Procedure to grant leave and permission by condoning the delay in filing the documents viz., (1) Property tax demand notice of Asst.No.1082000893, Pathinivanipeta Veedhi of D.No.7-1-207 issued by Amudalavalasa Municipality obtained through RTC dt. 28-10-2013; (2) Permanent and present address along with ration card filed by the plaintiff before the Regional Transport Officer-cum-Dy. Transport Commissioner, Srikakulam obtained through RTI dt. 19-11-2013; (3) Certified copy of deposition of PW.1 Kota Sri Jaggu Naidu, Chief and Cross examination in I.A.No.841/2010 in I.A.826/2009 in OS.186/2009 on the file of the Honourable VIII Additional District Judge, Gajuwaka; (4) Certified copy of partition deed marked as Ex.P.3 in I.A.841/2010 in I.A.826/2009 in OS.186/2009 on the file of the Honourable VIII Additional District Judge, Gajuwaka filed by PW.1 Kota Sri Jaggu Naidu; (5) Certified copy of voters list obtained through RTI by the plaintiff in marked as Ex.R-1 in I.A.841/2010 in I.A.826/2009 in O.S.186/2009 on the file of the Honourable VIII Additional District Judge, Gajuwaka filed by RW-1 Virothi Tirupathi Rao; (6) Certified copy of passport entries relating to the defendant herein; (7) Certified copy of decree and common order in OP.1365/2009, OP.1367/2009, OP.1369/2009 on the file of the Honourable Additiional Family Judge Court, Visakhapatnam; (8) Certified copy of sale deed bearing No.3671/2009 dated 5-11-2009;
(9) Certified copy of plaintiff in O.S.186/2009 on the file of the I Additional Dist Judge Court, Visakhapatnam; (10) Certified copy of plaint in O.S.283/2009 on the file of the Senior Civil Judge Court, Gajuwaka; (11) Certified copy of complaint in CC.730/2009 on the file of the Honourable III Additional Chief Metropolitan Magistrate court, Gajuwaka and (12) Certified copy of FIR 499/2011 dated 5-9-2011 and complaint filedk by Virothi Thirupathi Rao against the plaintiff and 5 others before the Gajuwaka Law and Order Police.
7. CRP.1535/2014 is filed against the order dated 29.04.2014, dismissing I.A.No.433/2014 filed by the petitioner under Order 16 Rule 1 of Code of Civil Procedure to issue summons to Sri Kota Jaggu Naidu s/o late Krishna Murthy, practicing advocate and counsel appearing on behalf of the plaintiff for the purpose of giving evidence.
8. CRP.1549/2014 is filed against the order dated 29.04.2014, dismissing I.A.435/2014 by the petitioner under Order 18 Rule 17 of the Code of Civil Procedure to recall the petitioner-DW.1 for giving further evidence.
9. Resisting the reliefs sought by the petitioner/defendant, the respondent /plaintiff filed counters in all the above mentioned interlocutory applications. The learned Principal District Judge, by virtue of the orders dated 29.04.2014 dismissed all the I.As filed by the petitioner. Calling in question the validity and the legal acceptability of the said orders, the present revisions have been filed under Article 227 of the Constitution of India.
10. Reiterating the contents of the affidavits filed in support of the petitions, it is contended by the learned counsel for the petitioner that the orders under Revision are erroneous, contrary to law and vitiated by material irregularities besides being opposed to the very spirit and object of the provisions of the Code of Civil Procedure. It is further argued by the learned counsel that in the event of the applications being allowed, no prejudice would be caused to the respondent plaintiff. It is further argued that the documents sought to be pressed into service are very much relevant and would not only strengthen the case of the petitioner but also unfold financial incapacity of the respondent/plaintiff and also to prove the defence of collusion of the plaintiff with one Kota Venkata Vasudeva Rao. It is also argued that the reasons assigned by the learned Principal District Judge for refusing to issue summons to the Regional Transport Officer and the Municipal Commissioner, Amudalavalasa and the reasons given for refusing to recall PW.1 and DW.1 are erroneous and not in conformity with the relevant provisions of law. The learned counsel in support of his submissions and contentions in CRP.Nos.1531 and 1532 of 2014 which arise out of I.A.Nos.431 and 432 of 2014 places reliance on the decisions in the case of NARSI REDDY AND OTHERS v. RAMI
[1]
REDDY GOPAIAH AND OTHERS a n d SHAIK UJAUDDIN V.
[2]
VEERABHADRA UMA DEVI AND OTHERS
11. In the case of NARSI REDDY AND OTHERS (supra 1), this Court at paragraphs 5 and 6, held as follows:
“5. The learned Counsel for the revision petitioners drew the attention of this Court to the provisions contained under Order 16, Rules 1, 5, 6 and 7 of CPC. It is her contention that the witness can be summoned either to give evidence or to produce documents or for both the purposes. It is her contention that as the witnesses were not summoned to produce the documents concerned, the trial Court is not entitled to receive those documents and mark them as Exs.X1 and X2.
6. I do not find any substance in that contention in view of the facts of the present case. When a person comes to the Court to give evidence and when that person knows that his oral evidence can be supported or corroborated by documents already in his possession, in my considered opinion, even if the Court did not summon the documents concerned, witness is at liberty to produce the documents in Court to corroborate the oral evidence he is going to give before the Court. Production of relevant documents by the witness in his custody will go a long way to establish his credibility. Non- Production of relevant documents in his custody will make his oral testimony useless. Therefore, there is no substance in the present revision petition.”
In the case of SHAIK UJAUDDIN (supra 2), this Court at paragraphs 4 and 5, held as follows:
“4. In my opinion, a private party, in order to substantiate his own plea, cannot seek to drag the Government officials to the Court as that would involve waste of precious time of the officials. Order XVI Rule 1 of the Code is not meant for helping litigants who fail to adduce proper and relevant evidence to prove their case and rely solely on the basis of the testimony of public servants. The predominant object of this provision is to enable the Court to summon any witness if it feels that the evidence of such person is necessary for proper and effectual adjudication of the dispute involved in the suit. It is not as if the lower Court, on application of its mind, has felt that the evidence of the Tahsildar is needed for adjudication of the dispute involved in the suit. In a suit involving disputes over immovable properties between two private parties, the Courts shall not ordinarily summon public servants to support the cause of one party unless the Court itself is of the opinion that the evidence of such public servant is required to adjudicate on the seriously disputed questions arising in the suit.
5. For the above mentioned reasons, the order under the Revision cannot be sustained and the same is accordingly set-aside. The Civil Revision Petition is accordingly allowed. This order, however, would not preclude respondent No. 1 from filing the patta certificate stated to have been issued in her favour and any other official record after obtaining the same from the authority concerned. As a sequel, interim order dated 10-4-2012 is vacated and CRPMP No. 2271 of 2012 is disposed of as infructuous.”
12. Per contra, it is contended by the learned counsel for the respondent that the orders impugned are perfectly legal and are inconsonance with the relevant provisions of the Code of Civil Procedure and the orders under revisions do not suffer any irregularity as such the same are not amenable for interference under Article 227 of the Constitution of India. It is further argued by the learned counsel for the respondent that the present applicants are belated and intended to drag on the proceedings. It is also argued by the learned counsel that the petitioner herein failed to show any semblance of relevance of the documents proposed to be filed to the issue in the suit and the only aspect which needs to be considered in the suit is whether the signature on the suit promissory note is genuine and that the place of residence is of no significance to decide the liability of the petitioner. It is also contended by the learned counsel for the respondent that earlier the petitioner filed I.A.No.89/2012 for receipt of certain documents and the said application was dismissed by the Court below and the same was confirmed in the revision before this Court. It is further submitted that neither the Regional Transport Officer nor the Municipal Commissioner has anything to do with the suit transactions and that the judgments cited on behalf of the petitioner have no relevance to the facts and circumstances of the case.
13. In the light of the material available on record, now the questions that arise for consideration of this Court in the present revisions are whether the orders under revisions are sustainable and tenable and whether the same warrant any interference of this Court under Article 227 of the Constitution of India?
14. The respondent herein instituted O.S.1/2010 against the petitioner on the file of the Court of the Principal District Judge, Srikakulam in the month of December 2009 for recovery of a sum of Rs.23,26,000/- with interest @ 18% on the foot of a promissory note dated 15.09.2009 said to have been executed by the petitioner herein. It is alleged in the plaint that despite legal notice dated 24.12.2009 the defendant neither replied nor paid the amount.
15. Resisting the averments in the plaint, the petitioner herein filed written statement contending that the plaintiff is a stranger to him and one Sri K.V.Vasudeva Rao pressed the plaintiff into service and the plaintiff is put to strict proof of his financial capacity.
16. The material available on record shows that the evidence of the plaintiff commenced on 03.08.2012 and DWs 1 to 3 were cross examined and the affidavit in lieu of chief-examination of DW.4 was filed on 21.03.2014 and when the matter was coming up for cross- examination of DW.4, the present applications were filed.
17. IA.Nos.431 and 432 of 2014 were filed under Order 16 Rules 1 and 6 read with Section 151 of the Code of Civil Procedure to issue summons to the Regional Transport Officer-cum-Deputy Transport Commissioner, Srikakulam and to the Commissioner, Amudalavalasa Municipality for production of documents mentioned in the petitions and to give evidence. In the affidavits filed in support of I.A.Nos.431 and 432 of 2014 petitioner stated that to prove his bona fides and to disprove the plaintiff’s case the summons are required to be issued to the Regional Transport Officer and the Municipal Commissioner to produce the documents and to give evidence.
18. IA.No.433 of 2014 was filed under Order 16 Rule 1 of the Code of Civil Procedure to issue summons to Sri Kota Jaggu Naidu, counsel appearing for the plaintiff, to give evidence. In the affidavit filed in support of I.A.No.433/2014, the petitioner stated that to prove his
bona fides and to disprove the plaintiff’s case and to prove the
relationship of the counsel with the plaintiff and to give evidence regarding his deposition in O.S.186/2010, the summons are required to be issued to Sri Kota Jaggu Naidu, counsel for the petitioner.
19. Resisting these applications respondents herein filed counters stating that the petitioner filed these applications at the belated stage only for the purpose of procrastinating the suit proceedings and no purpose would be served even if the applications are considered and that the petitions are not maintainable.
20. At this juncture, it would be appropriate to refer to the provisions of Order 16 Rules 1 and 6 of the Civil Procedure Code, which reads as under:
Rules 1 and 6 of Order 16 "1. List of witnesses and summons to witnesses.- (1) On or before such date as the court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in court.
(2) A party desirous of obtaining an summons for the attendance of any person shall file in court an application stating therein the purpose for which the witness is proposed to be summoned.
(3) The court may, for reasons to be recorded, permit a party to call, whether by summoning through court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the court or to such officer as may be appointed by the court in this behalf within five days of presenting the list of witnesses under sub-rule (1).
6. Summons to produce document.- Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.”
21. It is also appropriate to refer to Rule 129 of the Civil Rules of Practice and Circular Orders, 1990, which reads as infra:-
“129. Production of records in the custody of a Public Officer other than a court:-
a. A summons for the production of records in the custody of the Public Officer other than a court shall be in Form No. 23 and shall be addressed to the Head of the office concerned and in the case of a summons to a District Registrar or a Sub-Registrar of Assurances, it shall be addressed to the Registrar or Sub-Registrar in whose office, or sub-office, as the case may be, the required records are kept.
Provided that, where the summons is for the production of village accounts, including filed measurement books, such summons shall be addressed to the Tahsildar or the Deputy Tahsildar in independent charge as the case may be.
Provided further that when the summons is for production of records in the custody of high dignitaries like the Speaker of the Lok-Sabha or State Legislative Council etc., the summons shall be in the form of a letter of request in form No. 23-A.
b. Every application for such summons shall made by an affidavit setting out(1) the document or documents the production of which is require; (2) the relevancy of the document or documents; and (3) in cases where the production of a certified copy or copies and the result of such application.
c. No court shall issue such summons unless it considers the production of the original necessary or is satisfied that the application for a certified copy has been duly made and has not been granted. The court shall in every case record its reasons in writing and shall require the applicant to deposit in court, before the summons is issued, to abide by the order of the court, such sum as it may consider necessary to meet the estimated cost of making a copy of the document when produced
(3) Unless the court requires the production of the original, every such summons to a public officer shall state that he is at liberty to produce, instead of the original, a copy certified in the manner prescribed by section 76 of the Evidence Act.
(4) Nothing in the above rules shall prevent a court of its own motion from issuing a summons for the production of public records or other documents in the custody of Public Officer in accordance with sub-rule (1), if it thinks it necessary for the ends of justice to do so. The court shall, in every case, record its reasons in writing.
22. It is evident from the above provisions of law that it is obligatory on the part of the person applying to show sufficient reasons and the power available to the Court under the said provision of law is discretionary and it is also open for the Court to refuse the relief prayed if no sufficient reasons are shown. At this juncture, it is relevant to refer to the judgment of this Court in Gopal Krishna Murthy v. B.Ramchander Rao (died) and others (1973 An.W.R. p.32) and at paragraph 10 of the said judgment, this Court held as under:
“A reading of the above authorities leads me to lay down the following propositions:(1) Under Order 16, Rule 1, Civil Procedure Code, it is the right of the party at any stage of the suit to make an application to the Court seeking that summons be issued to a witness either to give evidence or to produce documents.(2) The Court is not entitled to refuse such an application on the ground that it might cause delay in the trial of the suit on the adjourned date of the suit.(3) If the summons is not served by the adjourned date of the suit, the party who filed the application to issue the summons would take the risk.(4) If an application for adjournment is made at the instance of the party who applied under Order 16, Rule 1, Civil Procedure Code, it is for the Court to consider whether or not an adjournment should be granted. (5) The Court may not refuse to order an application under Order 16, Rule 1, Civil Procedure Code on the ground that the evidence, if produced, may not be of any help to the applicant. (6) Though Order 16, rule 1, Civil Procedure Code does not in terms impose any restrictions on the Court, the Court in the exercise of its inherent jurisdiction may refuse to issue summons in an application made under Order 16, rule 1, Civil Procedure Code, in those cases where it is satisfied that the application filed was not bona fide or was vexatious or granting the application would result in an abuse of process of the Court. Except in these three above contingencies the application must almost always be ordered”.
23. In Mange Ram v. Brij Mohan and others (AIR 1983 SC 925), the Hon’ble Supreme Court at paragraph 8 held as follows:
“Sub-rule (1) of Rule 1 of order XVI casts an obligation on every party to a proceeding to present a list of witnesses whom it proposes to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. Sub-rule (2) requires that the parties seeking the assistance of the Court for procuring the attendance of a witness must make an application stating therein the purpose for which the witness is proposed to be summoned. Sub-rule (3) confers discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted in subrule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1A in its amended form in force since 1977 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in sub-rule (3) of Rule 1 of Order XVI. If a reference to Rule 22 of the High Court Rules is recalled at this stage, it merely re-enacts sub-rule (1) and sub-rule (2) of Rule 1 of Order XVI”.
24. Learned counsel for the respondent places reliance on the Judgments in the case of D.RAM MOHAN RAO v. SRIDEVI HOTELS PVT. LTD. REP. BY MANAGING DIRECTOR SRI MOHAN REDDY
[3]
AND ORS. and SHAIK HUSSAIN PEERA (DIED) L.RS. AND
ORS. v. J. SUSEELAMMA, W/O. LATE SUBRAMANYAM AND
[4]
ORS. .
25. In the case of D.RAM MOHAN RAO (supra 3), this Court at paragraph 18, held as follows:
“18. As per Sub-rule (2) of Rule 129 of Civil Rules of Practice, every application for such summons shall be made by an affidavit setting out the document the production of which is required, the relevancy of such document and in cases where the production of a certified copy would answer the purpose, whether such application was made to the proper officer and the result of such application. That apart, Sub-rule (3) also makes it clear that before issuing the summons the Court shall be satisfied that the production of such original document is necessary and shall record its reasons in writing. In the alternative, it has to be established to the satisfaction of the Court that the application for a certified copy has been duly made and has not been granted. The said requirements are also clear from the language of Form No. 23 in which the summons have to be issued by the Court under Sub-rule (1) for production of the records in the custody of a Public Officer.”
In the case of SHAIK HUSSAIN PEERA (DIED) L.RS. AND ORS.
(supra 4), this Court at paragraphs 4 and 5, held as under:
“4. A party to a suit is conferred with a right to summon the documents, which are not in his possession, by filing an application under the relevant Rule of Order 16 Code of Civil Procedure. Two conditions are required to be satisfied for this purpose: The first is that the documents, which are proposed to be summoned, must be shown to be relevant, to the dispute in the suit. The second is that the document must be mentioned and described specifically. The Petitioners filed I.A. No. 49 of 2010 with a request to summon the Branch Manager and to require him to produce the "loan account".
5. When the object of the Petitioners is to get a document that contains the undisputed signature of late Subrahmanyam, they were required to be certain about the identity of the same, and to be specific about the description. Summoning of a file, or "loan account" would in no way serve the purpose. The Petitioners are not specific about any particular document in the file. Before requesting the trial Court to summon the document, they ought to have been sure about the nature of the document. In fact, they could have obtained certified copy of the same, if there exists one. Unless the Petitioners are certain about the description of the document, there does not exist an occasion to examine its relevance. The trial Court has taken the view that the application filed by the Petitioners is vague and bereft of specific information. This Court is not inclined to interfere with the orders passed by the trial Court.”
26. In IA.No.431 and 432 of 2014, the Court below recorded a categorical finding that the documents sought to be produced by summoning the witnesses have absolutely no relevance to the facts and circumstances of the case and the Court further held that if they are considered to be relevant, certified copies can be obtained by the petitioner and eventually the Court below dismissed these applications. The affidavits filed in support of these applications are completely bereft of any material, which shows the relevance of these documents to the issue in the present case for adjudication.
27. In I.A.No.433/2012 the learned Judge passed the order rejecting the claim. It is appropriate to mention at this juncture that there is absolutely no reference in the pleadings in the written statement with regard to the counsel for the plaintiff and the learned Judge on the ground of lack of bona fides dismissed this application. As per the provisions of Order 16 and Rule 129 of the Civil Rules of Practice, it is incumbent on the part of the person applying for to show the relevance and furnish the particulars. In the present case, they are conspicuously absent. Therefore, the Court below is perfectly justified in rejecting relief to the petitioner herein in I.A.Nos.431, 432 and 433 of 2014.
28. In view of the above reasons and the law laid down in the above referred judgments, the Court below is justified in dismissing IAs.431, 432 and 433 of 2014. Therefore, this Court finds no valid reason to disturb the orders passed in the said interlocutory applications and accordingly hold that there are no merits in CRP.Nos.1531, 1532 and 1535 of 2014.
29. CRP.Nos.1533 and 1549 of 2014 have been filed by the petitioner against the orders in IA.Nos.434 and 435 of 2014 under the provisions of Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure to recall PW.1 for further cross-examination and DW.1 for giving further evidence, respectively.
30. The reason assigned in the affidavits filed in support of the said applications is that to disprove the contents of the plaint and to strengthen his case and for better appreciation and to prove financial incapacity the summons under the provision of Order 18 Rule 17 of the Code of Civil Procedure are required to be issued to the persons concerned. The petitioner herein also stated in the said supporting affidavits that he could not give complete evidence relating to the documents while he was giving evidence as his advocate did not lead him on all the aspects of the said documents due to oversight and inadvertence. The learned Judge dismissed these applications as a consequence of the orders passed in I.A.No.440/2014 filed by the petitioner herein to receive the documents by condoning the delay. The learned Judge also observed that there are no bona fides on the part of the petitioner/defendant at this stage. The learned Judge also found no merits in the petitions.
31. Coming to the CRP.No.1534/2014 which is filed against the order in IA.No.443/2014, the petitioner herein filed the said IA.443/2014 under the provisions of Order 8 Rule (1) (3) read with Section 151 of the Code of Civil Procedure to grant leave and permission by condoning the delay in filing the documents mentioned in the said interlocutory application. The learned Judge by virtue of the impugned order dated 29.04.2014 dismissed the said application, categorically holding that the trial in the suit commenced long back and the evidence on behalf of the plaintiff also was closed by examining the plaintiff as PW.1 and two other witnesses as PWs.2 and 3 and marking exhibits A.1 to A.3 and the defendant was also examined as DW.1 and 3 other witnesses were examined as DWs.2 to 4. The learned Judge also recorded a finding that the said application is only an attempt to drag on the proceedings and to harass the respondent/plaintiff. The learned Judge also found that the documents sought to be filed are unconnected and irrelevant to the suit. Another significant aspect which needs mention at this juncture is that in the counter filed in the said IA.443/2014 the respondent categorically stated that the list mentioned documents 1, 4, 5, 8, 11 and 12 were also attempted to be filed vide I.A.No.89/2012 which was dismissed by the Court below on 25.04.2012 and the same was confirmed in CRP.2366/2012 before this Court.
32. Obviously, taking into consideration these aspects the learned Judge dismissed the present application in I.A.443/2014. At this juncture, it may be appropriate to refer to the judgments in the case of
K.K. VELUSAMY v. N. PALANISAMY
[6]
[5]
, NAGUMOTHU
SRIHARINATH VS. NAGUMOTHU VANI , C . RAMA MOHAN
[7]
REDDY v. KUSETTY SESHAMMA AND OTHERS and VADIRAJ
NAGGAPA VERNEKAR (D) THROUGH LRS. v. SHARAD CHAND
[8]
PRABHAKAR GOGATE ,
33. In the case of K.K. VELUSAMY V. N. PALANISAMY (supra 5), the Hon’ble apex Court, at paragraphs 9, 10, 15, 16, 17, 18 and 19, held as follows:
“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. In the absence of any provision providing for re-opening 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. The scope of Section 151 has been explained by this Court in several decisions (See: Padam Sen v. State of UP : AIR 1961 SC 218; Manoharlal Chopra v. Seth Hiralal : AIR 1962 SC 527; Arjun Singh v. Mohindra Kumar : AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd.
v. Kanhay Lal : AIR 1966 SC 1899; Nain Singh v. Koonwarjee : 1970 (1) SCC 732; The Newabganj Sugar Mills Co. Ltd. v. Union of India : AIR 1976 SC 1152; Jaipur Mineral Development Syndicate v. Commissioner of Income Tax, New Delhi : AIR 1977 SC 1348; National Institute of Mental Health and Neuro Sciences v. C Parameshwara : 2005 (2) SCC 256; and Vinod Seth v. Devinder Bajaj : 2010 (8) SCC
1). 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.
(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 necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or 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 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.
(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.
15. The Appellant - Defendant has taken a consistent stand in his reply notice, written statement and evidence that the agreement of sale was executed to secure a loan of Rs. 150,000, as the Respondent insisted upon execution and registration of such agreement. If after the completion of recording of evidence, PW1 and PW2 had admitted during conversations that the amount paid was not advance towards sale price, but only a loan and the agreement of sale was obtained to secure the loan, that would be material evidence which came into existence subsequent to the recording of the depositions, having a bearing on the decision and will also clarify the evidence already led on the issues. According to the Appellant, the said evidence came into existence only on 27.10.2008 and 31.10.2008, and he prepared the applications and filed them at the earliest, that is on 11.11.2008. As Defendant could not have produced this material earlier and if the said evidence, if found valid and admissible, would assist the court to consider the evidence in the correct perspective or to render justice, it was a fit case for exercising the discretion under Section 151 of the Code. The courts below have not applied their minds to the question whether such evidence will be relevant and whether the ends of justice require permission to let in such evidence. Therefore the order calls for interference.
16. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application.
17. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. Courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, re-opening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency.
18. In this case, we are satisfied that in the interests of justice and to prevent abuse of the process of court, the trial court ought to have considered whether it was necessary to re- open the evidence and if so, in what manner and to what extent further evidence should be permitted in exercise of its power under Section 151 of the Code. The court ought to have also considered whether it should straightway recall PW1 and PW2 and permit the Appellant to confront the said recorded evidence to the said witnesses or whether it should first receive such evidence by requiring its proof of its authenticity and only then permit it to be confronted to the witnesses (PW1 and PW2).
19. In view of the above, these appeals are allowed in part. The orders of the High Court and Trial Court dismissing IA No. 216/2009 under Section 151 of the Code are set aside. The orders are affirmed in regard to the dismissal of IA No. 217/2009 under Order 18 Rule 17 of the Code. The trial court shall now consider IA No. 216/2009 afresh in accordance with law.””
In the case of NAGUMOTHU SRIHARINATH (supra 6), this Court at paragraph 5 held as follows:
“5. In this case, the reason assigned for recalling the witness for further cross-examination being that of not briefing properly the counsel at the time of cross-examination of P.W. 1, cannot be accepted as a ground for recalling of the witness for further cross-examination. However, this order will not in any way affect the production or otherwise of the evidence of the petitioner-defendant”
In the case of C . RAMA MOHAN REDDY (supra 7), this Court at paragraph 4, held as follows:
“4. In my opinion, reasons on which the applications filed by the petitioner are wholly unacceptable. Being the plaintiff, the responsibility lies on him to establish his case with reference to his own pleadings. He is bound to file all those documents, which advance his case and establish his pleadings. The petitioner cannot be permitted to fish out evidence from time to time and on installment basis depending upon what the defendant deposes. Order VII Rule 14(1) of the Code of Civil Procedure, 1908, enjoins upon the plaintiff to enter all the documents, upon which he relies, in a list and shall produce them in the Court when the plaint is presented. Sub-Rule 3 of Rule 14 vests power in the Court to grant leave to file the documents at a later stage, but such a power has to be exercised only upon the plaintiff satisfying the Court that for convincing reasons those documents could not be filed earlier. It is not the pleaded case of the petitioner that the documents, which he sought to file, were not in his possession earlier. As noted above, his main plea is that since respondent No. 1 concentrated more on the boundaries, he wanted to strengthen his case by adducing further evidence. Such a reason cannot be accepted for permitting a party to file further evidence at a belated stage.”
In the case of VADIRAJ NAGGAPA VERNEKAR (D) THROUGH
LRS (supra 8), the Hon’ble apex Court at paragraphs 16 and 17, held as follows:
“16. 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. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross- examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. 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.
17. 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. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.
34. The reasons assigned by the petitioner in the affidavits filed in support of these applications filed under Order 18 Rule 17 and Order 8 (1) (3) of the Code of Civil Procedure are not inconsonance with the ingredients of the said provisions of law.
35. It is also pertinent to note that at this juncture that as per the law laid down by the Hon’ble apex Court in the judgments reported in M/S.
[9]
ESTRALL RUBBER v. DASS ESTASTE (PVT.) LTD. , OUSEPH
[10]
MATHAI AND OTHERS v. M.ABDUL KHADIR and SURYA DEV
[11]
RAI v. RAM CHANDER RAI AND OTHERS , unless the orders in
question are patently perverse and illegal, the jurisdiction of this Court under Article 227 of the Constitution of India is not available. This Court does not find any fundamental defect nor foundational infirmity nor any jurisdictional error in the orders under revision so as to interfere under Article 227 of the Constitution of India. This Court does not find any valid reasons to disturb the well considered orders passed in accordance with the relevant provisions of law by the learned Principal District Judge.
36. For the aforesaid reasons and having regard to the principles laid down in the above referred judgments and having regard to the findings recorded by the learned Principal District Judge, this Court is neither inclined nor persuaded to interfere with the orders impugned in these revision petitions and finds no merits in the revisions. Accordingly, the Civil Revision Petitions are dismissed. As a sequel, miscellaneous petitions pending if any, shall stand closed. Since it is a suit of 2010 and having regard to the nature of controversy, this Court deems it appropriate to direct the learned Principal District Judge, Srikakulam to dispose of the suit as expeditiously as possible. No order as to costs.
A.V.SESHA SAI,J Date:20-06-2014 grk
THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
C.R.P Nos.1531, 1532, 1533, 1534, 1535 and 1549 of 2014
Dated 20th June, 2014
grk
[1] 2002 (3) ALT 290
[2] 2013 (1) ALD 207
[3] 2006 (1) ALD 28
[4] 2011 (5) ALD 39
[5] 2011 (11) SCC 275
[6] 1997 (5) ALD 237
[7] 2012 (4) ALD 96
[8] (2009) 4 SCC 410
[9] (2001) 8 SCC 97
[10] (2002) 1 SCC 319
[11] (2003) 6 SCC 675