Michelle Rejji Cope Vse Murial Wd/O Benhar Cope

[1] Rule. Rule made returnable forthwith. Heard finally by consent.

[02] The learned Counsel for the petitioner has placed his reliance upon the following cases :

i.K.K. Velusamy vs. N. Palanisamy â€" 2011 AIR SCW 2296

ii.Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon â€" AIR 1969 SC 1267.

iii.Md. Shahid Ibrahim & others vs. Mrs. Marium Iqbal & others â€" AIR 2018(NOC) 821 (SIK.)

iv.Atchut Upendra Raikar vs. Surya Upendra Raikar â€" 2006

(3) AIRBomR/366.

The learned Counsel for the respondent has also placed reliance upon the following cases :

i.Gayathri vs. M. Girish â€" AIR 2016 SC 3559.

ii.Prafulla s/o Narhar Wagh & Anr. vs. Govind s/o Narayan Pimpalkar â€" 2017(6) ALL MR 22.

[03] In the case of K.K. Velusamy (supra), it is held by the Hon'ble Apex Court that inherent powers of the Court under Section 151 of the Code of

Civil Procedure (C.P.C. for short) can be invoked in appropriate cases to reopen evidence and/or to recall witnesses for further examination. In the

case of Jai Jai Ram Manohar Lal (supra), the Hon'ble Supreme Court has held that rules of procedure are intended to be a handmaid to the

administration of justice and a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the

rules of procedure. In the third case of Md. Shahid Ibrahim (supra), the Sikkim High Court has held that reaching the by the Senior Counsel before

scheduled time could not be a ground for refusing him to re-cross examine the witness.

[04] There is no dispute about the principles of law cited in the above referred three cases and they would have to be borne in mind while deciding the

question involved in the present case. The principle of law stated in the fourth case of Atchut Upendra Raikar (supra), is that each and every case

cited before the Court must be dealt with by the Court and if it is found that the ratio cannot be applied, the Court must give a summary of the

distinguishing facts.

[05] In the cases of Gayathri and Prafulla Narhar Wagh (supra), it is held that when several opportunities are granted to a party to cross-examine a

witness and those opportunities are not availed of, such party does not deserve to be granted any relief in the matter or otherwise it would amount to

only delay in disposal of the suit. This principle would also have to be borne in mind.

[06] In this case, the facts can very well be ascertained by going through the application filed under Order 18 Rule 17 of C.P.C. seeking permission of

the Court for recalling of the witness of the plaintiff for his additional cross-examination.

[07] A perusal of the application (Exh.52) discloses that the main reason for which recalling of the witness has been sought is something unusual. It is

stated in the application that there was no dispute in the fact that evidence was recorded and cross-examination by Advocate Shri G.B. Patil was

taken and that Shri G.B. Patil cross-examined the plaintiff and his witness, but it is further stated that, to use the words of the respondent, “Shri

G.P. Patil has crossed the plaintiff and his witness, but in his cross-examination he could not put the question which are necessary due diligence.

Moreover, there is a family dispute, hence, family history should be come on record It is also submitted that the defendant is ill-health lady and she

depend upon the Advocate. But, Senior Advocate could not attend the matter and junior attended the matter and cross question about the building i.e.

suit building when constructed, who invested the amount the question could not be answered properly and, therefore, the Hon'ble Court recorded the

sigma on the evidence of the plaintiff that, “witness cleverly avoided to give answer when construction was completeâ€​.â€​

[08] These grounds stated in the application indicate that a blame has been put up on Shri G.B. Patil, Advocate who conducted cross-examination of

the plaintiff and his witness and it is stated that necessary questions were not put to the witnesses though due diligence for quoting those questions

should have been shown by the Advocate. These reasons also show that Senior Advocate was also blamed for his non-attendance and the Junior

Advocate, whose name was not mentioned, could not put the questions effectively in the cross-examination so as to elicit proper answers. These

grounds, firstly, I would say do not fulfill the criterion of Order 18 Rule 17 of C.P.C. Although the power under Rule 17 is the power of the Court to

recall any witness and put to that witness such questions as the Court deems fit, the purpose of the power is not to enable a party to fill up the lacunae

in it's case. The purpose sought to be achieved is to get clarification of some issues about which there is a doubt entertained by the Court and not to

enable a party to get the clarification. Such power even if it is to be exercised by the Court, as per the settled law, cannot be invoked for filling up the

lacunae in the case of the party. The relevant case law in this regard has already been reproduced in the impugned order and I do not feel it necessary

to once again to reproduce the same. But, it is for sure that even if the power under Rule 17 of Order 18 is to be invoked, it must be by the Court only

and that too for doing justice between the parties and not for causing injustice to one party by enabling another party fill up the lacunae in it's case

while depriving the first party of the advantage it has received due to those lacunae. Inability of an advocate, as submitted in the present case by the

petitioner, could never be a good ground even for the Court to suo motu exercise it's such a power. In the present case, it is a different matter that the

application is not for invoking suo motu power by the Court but for doing so at the behest of one of the parties. Such an application, in any case, could

not have been allowed by the trial Court.

[09] The reasons stated in the application have also another dimension to them, which needs to be considered appropriately. Of course, it does not

appear to be considered by the trial Court while rejecting the application, but it being relevant, would require this Court to deal with that aspect of the

case.

[10] The name of Advocate Shri G.B. Patil has figured in the application. It is stated that he failed to show necessary diligence for conducting

effective cross-examination of the witnesses. No statement in this application has been made to the effect that Shri G.B. Patil was properly and

completely briefed by the party and in spite of the instructions having been given to him, he did not bear those instructions in mind and failed to conduct

the cross-examination based upon such instructions. One does not know whether any such necessary instructions were given to Shri G.B. Patil or not.

On the contrary, there appears to be a possibility of such instructions having not been given to Shri G.B. Patil or otherwise the petitioner would have

issued notice to Shri G.B. Patil before filing this application for his failing to show professionalism of desired standard while conducting the cross-

examination of the witness. Making of an allegation like the present one, which appears to be quite serious, cannot be permitted unless Shri G.B. Patil

is also given an opportunity to show cause in the matter. But, the question of giving of any opportunity to him never arose, as the petitioner did not

choose to issue any notice to Shri G.B. Patil. The conduct of the petitioner in not issuing any notice to Shri G.B. Patil would only indicate in a

reasonable manner that the fault would not entirely lay in the camp of Shri G.B. Patil. Therefore, the petitioner cannot be permitted to say that Shri

G.B. Patil failed to conduct the cross-examination in a proper and effective manner.

[11] It is also stated in the application that on the last date, which preceded the date on which the application was filed, another Advocate Shri S.M.

Laddha was engaged by the petitioner and the new advocate went through the record and found that the case was not conducted properly because

the advocate, who conducted the case previously was junior. This is only the opinion given by the subsequent counsel. We do not know what is the

opinion of the previous counsel. It may be the case wherein the previous counsel would say that in his opinion he had conducted the case properly. In

such a case, it would be very difficult to uphold the contention of the petitioner that the opinion of the second or subsequent advocate is only right and

the opinion of the previous advocate is absolutely wrong. In any case, an application filed under Order 18 Rule 17 of C.P.C. cannot be decided on the

basis of the opinion of the subsequent advocate. It has to be decided by keeping in mind the factor of causing of prejudice to a party for which the

party could not be blamed. Here is the case wherein the party itself has not taken proper steps in the matter and, therefore, now such party cannot be

heard to say that it's previous advocate did not conduct it's case properly.

[12] Regarding use of Section 151 of C.P.C., I would say although there is no dispute about the fact that a witness can be recalled for further

examination or cross- examination by invoking the power under Section 151 of C.P.C. and it is also not in dispute that the rules of procedure are

intended to be handmaid to the administration of justice, the power and the principle, on facts of this case discussed earlier, cannot be invoked and

applied here. It would then follow that no illegality much less patent illegality could be noticed in the order impugned here. Then, this is also not the

case wherein unlike the case of Md. Shahid Ibrahim decided by the Sikkim High Court, the Senior Counsel had reached the Court for re-cross

examination before the scheduled time. In that case, it appears, the re-cross examination was already permitted and the question was about the time

when the Senior counsel should be permitted to conduct the re-cross examination. In the present case, the permission for re-cross examination has

been sought and it has been rejected. These facts distinguishing themselves from the facts of Md. Shahid Ibrahim would, in my humble opinion, make

the case of the Md. Shahid Ibrahim as inapplicable here.

[13] It is true that the learned Civil Judge Senior Division has just in one or two lines stated that the cases cited before her were not applicable to the

facts of the case, as the facts of all those cases were different from the facts of the present case. It is also true that the learned Civil Judge did not

make any effort to justify as to how the facts of the present case were different from the facts of the cases cited before her. Such exercise ought to

have been undertaken by the learned Civil Judge and it's reflection ought to have been seen in the impugned order, but unfortunately, that is not the

case. The law in this regard is also well settled. For support, a useful reference may be made to the case of Atchut Raikar (supra) relied upon by the

learned Counsel for the petitioner.

[14] The further question, however, that arises in the present case is that on this ground alone, the impugned order could be found as worthy of being

quashed and set aside in exercise of the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. To my mind, the answer

would be in the negative, if one considers the well settled principles of law. In this regard, a useful reference may be made to cases of (i)

Chandrasekhar Singh & others vs. Siya Ram Singh & others - (1979) 3 SCC 118, (ii) Bathutmal Raichand Oswal vs. Laxmibai R. Tarta & another -

(1975) 1 SCC 858, (iii) M/s. Estralla Rubber vs. Dass Estate (Pvt.) Ltd. - AIR 2001 SC 3295 and (iv) State Through Special Cell, New Delhi vs.

Navjot Sandhu alias Afshan Guru & others - (2003) 6 SCC 641. According to these principles, it is not every erroneous order that deserves to be

corrected in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. It is only those orders, which are

patently illegal or stand as abuse of the process of the Court or if allowed to operate would result in causing of great prejudice to the party to a

proceeding, which should be interfered with by this Court. Such jurisdiction has to be exercised sparingly. A crystalline exposition of the scope of

jurisdiction of High Court under Article 227 of the Constitution of India can be had from the observations made by Hon'ble Apex Court in paragraph

28 of the judgment in the case of Navjot Sandhu (supra), which is reproduced as below :

“28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals

throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature.

The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The

powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order.

However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power,

when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial

superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority

and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to

warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It

is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguiseâ€​.

[15] In the present case, for the reasons stated earlier, I have found that the conclusions reached by the trial Court in rejecting the application vide

Exh.52 are in keeping with law especially when one considers the reasons stated in the application and conduct of the petitioner. Therefore, an order

which is otherwise found to be consistent with the well settled principles of law on the main aspect of the matter, in my considered view, must not be

upset by this Court, only on the ground that it fails to properly distinguish some of the cases cited from the view-point of their applicability. This ground

would have been relevant had a case been made out that those cases were indeed applicable, but such a case has not been demonstrated. So, if the

impugned order is upset by this Court, the prejudice to the respondent is likely to occur, which is not the purpose of jurisdiction under Article 227 of the

Constitution of India.

Therefore, I am not inclined to interfere with the impugned order on the aforestated singular ground.

[16] In the result, I find no merit in this petition and it deserves to be dismissed. The petition stands dismissed. Rule is discharged accordingly. No

costs.