Naliniprava Rout and Others vs Kanhu Charan Sahu

S.K. Sahoo, J.—Aggrieved by the orders dated 27.11.2014/24.12.2014 in W.P. (C) No. 1357 of 2006, the unsuccessful petitioners therein preferred the present writ appeal.

The appellants are the plaintiffs and the respondent is the defendant in the Court of Civil Judge (J.D.), Jagatsinghpur in T.S. No. 47 of 2001 wherein a prayer was made for a decree of declaration that Registered Deed of Gift No. 493 of 1982 in respect of suit property executed by late Guri Dei in favour of the defendant is illegal, fraudulent, invalid, inoperative and not binding against late Guri Dei and that the defendant had acquired no valid title and possession by virtue of the said deed of gift and that the final consolidation ROR prepared in pursuance of the said deed of gift in favour of the defendant in respect of the suit land was wrong and illegal and that the alleged partition of the joint family properties effected by the defendant and his brother Banambar Sahu before Asst. Consolidation Officer in Partition Case No. 128 of 1982 is illegal and not binding on the plaintiffs and that the suit property along with other joint family properties of Balakrushna, Kelu and Fakir remained joint.

The respondent appeared in the suit and filed his written statement denying the allegations made in the plaint.

During trial of the suit, writ appellant No. 2 Ramachandra Pradhan was examined as P.W.1. It is the case of the appellants that some contradictory statements were made by the writ appellant No. 2 as P.W.1 in his examination-in-chief and cross-examination for which from their side, an application under section 137 and 138 of Indian Evidence Act was filed on 9.2.2002 for a direction of re-examination of P.W.1 in order to reconcile the discrepancy and inconsistency made between the examination-in-chief and cross-examination and to explain the statement inadvertently made in the cross-examination and to remove the ambiguity.

The learned Civil Judge (Jr. Division), Jagatsinghpur after hearing both the plaintiffs and the defendant in the matter of recall and re-examination of P.W.1, allowed the petition vide order dated 22.2.2002.

The defendant being aggrieved by the said order dated 22.2.2002 preferred W.P.(C) No. 7391 of 2003 before this Hon''ble Court for quashing the said order passed by the learned trial Court. This Hon''ble Court vide order dated 20.9.2005 remitted the matter back to the trial Court with a direction to the said Court to reassess the evidence and dispose of the petition filed by the plaintiffs in consonance with law.

After receipt of the remand order dated 20.9.2005 of this Court passed in W.P.(C) No. 7391 of 2003, the learned trial Court vide order dated 10.01.2006 rejected the petition filed by the plaintiffs to recall P.W.1 mainly on the ground that by re-examination of P.W.1, the effect of cross-examination would be destroyed.

The plaintiffs-writ appellants being aggrieved by the order dated 10.1.2006 passed by the learned Civil Judge (J.D.), Jagatsinghpur in T.S. No. 47 of 2001 preferred a writ petition before this Court bearing W.P.(C) No. 1357 of 2006. The matter was finally heard by a Single Bench of this Hon''ble Court and vide order dated 27.11.2014, the writ application was dismissed with following reasons/observations:--

"6. In view of the above, it is stated that re-examination of P.W.1 for clarification as regards the statement during cross-examination coming in conflict with the version during examination-in-chief is necessary. It is again stated what the witness has stated during examination-in-chief and during cross-examination exposes ambiguity and are inconsistent as well as discrepant.

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In the present case, this P.W.1 has in clear terms stated during cross-examination that he handed over the document to son-in-law Babaji Rout who produced before the Advocate at Cuttack who drafted the plaint and accordingly under his instruction and the contents of the plaint were not read over to him, wife and his daughter. This P.W.1 is none other than one of the substituted plaintiffs. On a careful reading of the petition averments as well as the deposition of P.W.1, it is not understood as to what clarification is any more necessary from P.W.1 so that his re-examination is warranted. So also no such ambiguities remain in his evidence to be clarified. No more elucidation of the answers is found as the requirement to put any such question by his re-examination. This P.W.1 is a literate person and simply because he has given some answers during cross-examination which may not favour the petitioner''s case, the same is no ground to recall the witness for re-examination to demolish the effect of the same which runs contrary to the very purpose.

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In the wake of aforesaid, no such infirmity or illegality is found in the order of the learned Civil Judge (Jr. Division), Jagatsinghpur.

In the result, the Writ Application stands dismissed. No order as to cost. It is stated at the Bar that the judgment could not be pronounced due to interim order of this Court. It is needless to say that in view of the disposal of this writ application, the interim order of this Court passed earlier in the writ application, no more operates. The trial Court is directed to dispose of the suit by hearing arguments from both sides within one month from the production of the certified copy of this order or its communication whichever is earlier."

The order dated 27.11.2014 passed in W.P.(C) No. 1357 of 2006 was modified and corrected on 24.12.2014 and the name of the Court was corrected from Civil Judge (Senior Division) to Civil Judge (Junior Division).

The learned counsel for the appellants Mr. Baisnaba Ch. Das contended that the order of the learned Single Judge is illegal, arbitrary, contrary to law and against weight of evidence on record. It is contended that the learned Single Judge has erred both in facts and law and wrongly held that the petition for recall to re-examine P.W.1 was rejected by the trial Court against which W.P.(C) No. 7319 of 2003 was filed. It is contended that at the first instance the petition filed by the plaintiffs for recall and re-examination of P.W.1 was allowed. It is further contended that the learned Single Judge was not justified in holding that the judgment could not be pronounced by the trial Court due to interim order passed by this Court for which a direction was issued to the trial Court to dispose of the suit by hearing argument from both sides within one month. It is contended that when the evidence of the plaintiffs has not been closed and the material witnesses including appellant No. 2 have not been examined and the defendant has not began to adduce his evidence, it is purely illegal and arbitrary to direct the trial Court to pronounce the judgment by hearing arguments from both the sides. It is further contended that the plaintiffs-appellants who called the witness has a liberty to put any questions in the re-examination to get its explanation and accordingly the application for recall of P.W.1 for re-examination should have been allowed. Finally it is contended by the learned counsel for the appellants that the impugned order of the learned Single Judge passed on 27.11.2014 corrected on 24.12.2014 in W.P.(C) No. 1357 of 2006 is liable to be set-aside and the order of the learned Civil Judge (J.D.), Jagatsinghpur passed on 22.2.2002 in T.S. No. 47 of 2001 directing P.W.1 for re-examination is to be confirmed.

In a recent decision, the Hon''ble Supreme Court in case of Radhey Shyam and Others Vs. Chhabi Nath and Others(2015) 3 AD 73 : (2015) 2 RCR(Civil) 606 : (2015) 3 SCALE 88 : (2015) 5 SCC 423 : (2015) 3 SCJ 552 : (2015) 1 UPLBEC 646 held that judicial orders of the Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution and jurisdiction under Article 227 is distinct from jurisdiction under Article 226. It is further held that an order of Civil Court could be challenged under Article 227 and not under Article 226 of Constitution of India.

In case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2011) 1 CTC 854 : (2010) 7 JT 529 : (2011) 1 RCR(Rent) 1 : (2010) 7 SCALE 428 : (2010) 8 SCC 329 : (2010) 8 SCR 836 : (2010) AIRSCW 6387 , it is held that there is a growing trend amongst several High Courts to entertain writ petitions in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions are involved, writ courts are entertaining such disputes in a routine manner. It is further held that in cases of property rights and in disputes between private individuals, writ court should not interfere unless there is infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.

In case of Mahammed Saud and Others Vs. Dr. (Maj) Shaikh Mahfooz and Another, AIR 2009 Ori 46 : (2008) 2 OLR 725 , a Full Bench of this Court has held follows:--

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(1) After introduction of section 100-A in the Code of Civil Procedure by 2002 Amendment Act, no Letters Patent Appeal is maintainable against a judgment/order/decree passed by a learned Single Judge of a High Court.

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(3) A Writ Appeal shall lie against the judgment/orders passed by a learned Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of the Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie, whereas no Writ Appeal will lie against judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution."

This writ appeal was filed challenging the orders dated 27.11.2014/24.12.2014 of the learned Single Judge in W.P.(C) No. 1357 of 2006. The said writ application was filed under Article 227 of the Constitution of India wherein the order dated 10.1.2006 passed by the learned Civil Judge (Junior Division), Jagatsinghpur in T.S. No. 47 of 2001 rejecting the petition filed by the plaintiffs to recall P.W.1 for re-examination was under challenge. In view of the Full Bench decision of this Court in case of Mahammed Saud (supra), this writ appeal is not maintainable.

This writ appeal has been nomenclatured as an application under Article 4 of Orissa High Court Order, 1948 read with Clause 10 of the Letters Patent. Letters Patent of the Patna High Court has been made applicable to this Court by virtue of Orissa High Court Order, 1948. Letters Patent Appeal is an intra Court Appeal where under the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as vested in the Single Bench. (Ref:-- Baddula Lakshmaiah and Others Vs. Sri Anjaneya Swami Temple and Others, (1996) 2 AD 377 : (1996) 3 JT 198 : (1996) 2 SCALE 409 : (1996) 3 SCC 52 : (1996) 2 SCR 906 The Division Bench in Letters Patent Appeal should not disturb the finding of fact arrived at by the learned Single Judge of the Court unless it is shown to be based on no evidence, perverse, palpably unreasonable or inconsistent with any particular position in law. This scope of interference is within a narrow compass. Appellate jurisdiction under Letters Patent is really a corrective jurisdiction and it is used really only to correct errors, if any made.

A writ appeal is an appeal on principle where the legality and validity of the judgment and/or order of the Single Judge is tested and it can be set aside only when there is a patent error on the face of the record or the judgment is against established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing may be to the Division Bench; it is the view adopted by the Single Judge, which would, normally be allowed to prevail. If the discretion has been exercised by the Single Judge in good faith and after giving due weight to relevant matters and without being swayed away by irrelevant matters and if two views are possible on the question, then also the Division Bench in writ appeal should not interfere, even though it would have exercised its discretion in a different manner, were the case come initially before it. The exercise of discretion by the Single Judge should manifestly be wrong which would then give scope of interference to the Division Bench.

The flood of writ appeals is increasing day by day. Since it is an intra Court appeal, the aggrieved parties are virtually challenging every judgment/order of the Single Judge passed in a writ petition before the Division Bench. It is duty of the Division Bench to be slow in disturbing the judgment/order of the Single Judge if it is legally good, correct enough and justifiable on legal grounds. Testing of the order of the Single Judge on all facts and inch by inch is not permissible in the writ appeal.

Adverting to the present writ appeal, apart from the fact that it is not maintainable in view of the decision of the Full Bench of this Court in case of Mahammed Saud (Supra), we find that the reasonings assigned by the learned Single Judge in dismissing the writ application suffers from no infirmity and there is no patent error on the face of the record and the view taken by the learned Judge is quite reasonable and logical.

Re-examination is the examination of a witness, subsequent to the cross-examination by the party who called him. To explain the matters referred to in cross-examination, re-examination is directed by the Court. If the party who called the witness intends to introduce new matters in re-examination, necessary permission has to be taken from the trial Court in that respect. However, the adverse party can have the right to cross-examine upon the matter. Section 137 and 138 of the Indian Evidence Act, 1872 makes this proposition very clear. Thus right to re-examine a witness arises only after the conclusion of cross-examination. The object is to give an opportunity to reconcile the discrepancies if any between the statements in examination-in-chief and cross-examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination. Where there is no ambiguity or where there is nothing to explain, question put in re-examination with the sole object of giving a chance to the witness to undo the effect of the previous statement should not be asked during re-examination. Recall and re-examination of any person already examined must appear to the Court to be essential for the just decision of the case and exercise of such power should be made judicially and also with extreme care and caution.

By the judgment under appeal, the learned Single Judge of this Court dismissed the writ petition. In view of the facts narrated above and in the absence of any law which entitles the appellant to claim the benefit, at any rate, nothing is brought to our notice; we do not see any reason to interfere with the order under appeal.

The writ appeal is therefore dismissed at the admission stage.

Vinod Prasad, J.

I agree.