M/s. Munshi Lal Mahendra Kumar Jain and Another vs Gopal Gupta and Another

Hon''ble Shri Justice Sujoy Paul

In this petition filed under Article 227 of the Constitution, the petitioners-defendants have challenged the order dated 28.9.2011, whereby their application preferred u/s 151 CPC dated 2.9.2011 is rejected. Learned senior counsel submits that the defendants filed an application under Order 6 Rule 17 CPC, which was allowed by the court below and consequently a new para 17 was inserted in the written statement. The plaintiffs enjoyed the opportunity of filing consequential amendment and filed it. Thereafter by filing an application u/s 151 CPC it was prayed that the plaintiffs witnesses be recalled for their limited cross-examination as per the averments of newly added para 17 in the written statement. Learned senior counsel submits that the court below has erred in rejecting the said application solely on the ground that the plaintiffs had stated that they do not want to lead any evidence on the basis of amended pleadings. Learned counsel for the petitioners submits that the defendants have right to ask certain questions from the plaintiffs which will be naturally limited to the newly added paragraph 17 aforesaid. However, to elaborate he submits that the petitioners may ask the questions whether mobile number shown in the advertisement belongs to the plaintiffs or not and other questions limited to the extent indicated above. He submits that merely because the plaintiffs have stated that they do not want to leave evidence, will not deprive the defendants to recall the witnesses. He relied on the provisions of Order 18 Rule 17 CPC and following judgments:-

(i) A.E.G. Carapiet Vs. A.Y. Derderian,

(ii) 1978 JLJ SN 62 (Suganchand v. Laxmandas).

(iii) 2007 (III) MPJR SN 18 (UCO Bank vs. Bal Kishore Singhal and another).

(iv) 2007 (II) MPJR SN 21 (Satya Prakash and seven others vs. Smt. Shobha and eleven others).

On the strength of these judgments, learned senior counsel submits that the court below has erred in rejecting the application.

Per Contra, Shri Harish Dixit, learned counsel for the respondents-plaintiffs submits that the court below has not committed any error of law. He submits that the Order 18 Rule 17 is only an enabling provision. As per Sections 101-103 of the Evidence Act, the burden is on the defendant to prove his case and, therefore, the court below has not committed any error in not recalling the plaintiffs witnesses.

I have heard learned counsel for the parties and perused the record.

Order 18 Rule 17, CPC, reads as under: -

Order 18 Rule 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.

I have no doubt that the said provision is an enabling provision. It will always remain open for the court to permit recall of a witness in the facts and circumstances of a particular case. In other words, the provision does not mean that in all circumstances the court is under an obligation to grant permission for recall of a witness. Accordingly, the question is whether in the facts and circumstances of this case the court below has erred in rejecting the said application.

This Court in UCO Bank (supra) held that it is the discretion of the court to allow such application in the facts and circumstances of a particular case. In UCO Bank, the court gave opinion that in the facts of the instant case there was a need for recalling the plaintiffs witness for cross-examination.

In Suganchand (supra) also, in the facts and circumstances of that case, it was opined that the court below has erred in rejecting the application for recalling of witness. In Satya Prakash (supra) also in the given facts and circumstances this Court interfered. The judgment of Calcutta High Court is also passed in the facts and circumstances of the said case.

In my considered opinion, a bare perusal of Order 18 Rule 17 makes it clear that it is an enabling provision and does not mean that every application preferred in this regard should be granted. In this view of the matter, it is to be seen whether the court below in the facts situation of this case has rightly rejected the said application.

The defendant''s amendment was allowed. He added one para by way of amendment. In this para it is stated that the defendant came to know that the plaintiff wants to sell the shop in question. The defendant further pleaded that he came to know about it from Prabhat Bohra that plaintiff wants to sell the shop in question. It is further pleaded that the defendant on perusal of newspaper found that there is an advertisement for sale of that shop on 13.8.2011, which shows that there is no bonafide need of the said shop to the plaintiff. The plaintiff in turn stated that he does not want to lead any evidence.

Shri Jain, learned senior counsel submits that recalling of plaintiff''s witness is necessary because the petitioner wants to ask certain questions including the question whether cell number mentioned in the advertisement belongs to the plaintiff. The court below rejected the application on the ground that once plaintiff has stated that he does not want to lead any evidence, the burden is on the defendant to prove his case.

In the considered opinion of this Court, the applicability of Order 18 Rule 17 CPC is to be seen in the facts and circumstances of a particular case. There cannot be any straight-jacket formula. This view is also taken by this Court in UCO Bank''s case (supra). Thus, the judgments cited by the petitioner cannot be doubted but in those cases the court has examined the order impugned therein in the peculiar facts and circumstances of those cases. The ratio is that the said provision is an enabling provision. The limited question before the trial Court was whether in view of change of pleadings and insertion of para 17 in the written statement, recalling is permissible. The court below has rejected the application on the ground that the burden to prove those pleadings is on the shoulder of the defendant and application cannot be allowed. I find force in the argument of Shri Harish Dixit that as per Sections 101 to 103 of the Evidence Act, the burden is on the defendant to prove his case. The burden to prove that the advertisement was given for publication by the plaintiff and the cell numbers mentioned therein are of the plaintiff is also on the shoulder of the defendant. Accordingly, the court below has given a plausible reason which is in consonance with law. The scope of interference under Article 227 of the Constitution is limited. If the order impugned suffers from any jurisdictional error, suffers from any serious procedural irregularity or impropriety, then only interference can be made. Another view is possible is not a ground for interference. The basic purpose to exercise Article 227 jurisdiction is to keep the courts below within the bounds of their authority. Even a wrong order cannot be interfered as a routine. Interference can be made sparingly and not on a drop of hat. The purpose of interference is to keep the faith of people in justice delivery system and not for grant of relief in individual case. This view is taken by Supreme Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, , wherein the Apex Court has held as under:-

On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court''s jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it. ''within the bounds of their authority''.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court''s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar Vs. Union of India and others, and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the CPC by the CPC (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court''s power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court''s jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.

On the basis of aforesaid litmus test, I find no jurisdictional error in the order impugned. The court below has given plausible reasons for passing the impugned order. Another view is possible is not a ground to exercise power under Article 227 of the Constitution. No procedural error is pointed out and demonstrated. Accordingly there is no ingredient which warrants interference by this Court under Article 227 of the Constitution.

Petition sans substance and is hereby dismissed.