Sanjay Singh vs Pradeep and Others

Hon''ble Shri Justice Sujoy Paul

By invoking the jurisdiction of this Court under Article 227 of the Constitution, petitioner/defendant No. 4 has challenged the orders dated 14/10/2011, 01/11/2011 and 18/11/2011 passed by Third Additional District Judge, Morena in Civil Suit No. 01/11. The trial Court took up the matter on 14/10/2011 at 11 AM and petitioner/defendant No. 4 was absent. The matter was again taken up on the same day at 12 PM, when plaintiff and respondents were present. At this stage, plaintiff made certain allegations against the Court and the Court expressed its displeasure and posted the matter on the same date at 1-00 PM. At 1-00 PM, the cross examination of the remaining witnesses of plaintiff was started by defendants No. 1 to 3. Matter was taken up by the trial Court at 3.30 PM and the cross-examination of plaintiff was completed by the defendants No. 1 to 3. The Court recorded that defendant No. 4 or his counsel was not present till 4.25 PM and therefore, his right to cross-examine the plaintiffs witness was closed. Thus, the first grievance of the petitioner is that his right to cross-examine the plaintiff witness is erroneously closed down.

On 01/11/2011, the Court below opined that the affidavits under Order 18 Rule 4 CPC were filed by the other defendants, but defendant No. 4 has not chosen to file the affidavit and therefore, right to lead evidence and filing affidavit under Order 18 Rule 4 CPC by defendant No. 4 is closed down. This is second grievance of the petitioner that his right to lead evidence is erroneously closed by the Court below.

By order dated 18/11/2011, the Court below has closed the right of defendant No. 4 to cross examine the other defence witnesses. In other words, the Court below opined that the present petitioner/defendant No. 4 has no right to cross examine the witnesses of co-defendants. These three orders are called in question in this petition.

Shri N.K. Gupta, learned counsel for the petitioner while criticizing the orders submits as under:-

(i) By relying on Sections 137, 138 and 139 of the Evidence Act, he submits that plaintiff has to first lead evidence and after his cross-examination and re-examination, the defendants will lead their evidence. Since, the cross-examination of plaintiff witnesses by other defendants was over at 4.25 PM and thereafter abruptly the right of cross-examination of the plaintiff witness by defendant No. 4/petitioner should not have been taken away.

(ii) Challenging the second order, Shri N.K. Gupta submits that defendant No. 4 was under no obligation to file his affidavit under Order 18 Rule 4 CPC along with affidavit of other persons and failure to file his affidavit on that date cannot preclude him to file an affidavit in accordance with law. He relied on Mayadevi Kukreja (Smt.) Vs. Meera Agrawal and Another, ) (reported in toto) to submit that right to file affidavit cannot be taken away, if affidavits are not filed in one go.

(iii) Criticizing the third order, whereby right of cross examination of co-defendants witnesses was taken away, it is stated that the petitioner had a right to cross-examine the other defence witnesses.

Per Contra, Shri Anand V. Bhardwaj, learned counsel appearing for respondents No. 2 to 4 supported the order passed by the Court below. He submits that while exercising the powers under Article 227 of the Constitution, this Court may see the conduct of the petitioner and the respondent No. 1. They showed irresponsible attitude before the Presiding Officer of the trial Court and even challenged one of his order dated 24/08/2011 before this Court by filing W.P.No. 6131/2011 (Pradeep Vs. Chote Singh and others). In the said case, the application of Pradeep under Order 18 Rule 2 read with Section 151 CPC was rejected by the Court below. They unsuccessfully challenged the said order in the said writ petition and this Court after relying on the judgment of Supreme Court, did not interfere on the ground that the conduct of the party is also a relevant consideration for entertaining the petition. He submits that if the orders Annexure-P/1 to P/3 are read, it makes it crystal clear that defendant No. 4 and the plaintiff are hands in gloves and they were browbeating the bench and trying to obtain desired relief. In nutshell, Shri Bhardwaj submits that because of aforesaid conduct of the petitioner and plaintiff, the Court below became strict and a time schedule was fixed for filing the affidavit. When affidavit under Order 18 Rule 4 CPC was not filed, the Court below has not committed any error of law in view of the earlier order-sheets and rightly closed the right of the defendant No. 4. He submits that the defendant No. 4 was not present on 14/10/2011 at 11 AM and 3.30 PM, the Court granted sufficient opportunity to defendant No. 4 and therefore, no error can be found in the order passed by the Court below. Lastly, he submits that by no stretch of imagination, the defendant No. 4/petitioner can be treated as an adverse party. Relying on the written statement of defendant No. 4/petitioner (Annexure-P/4), it is submitted that in Para 1 of the said written statement, the claim of the petitioner was not disputed and therefore, the defendant No. 4 cannot be treated as an adverse party. He relied on Hussens Hasanall Pulavwala Vs. Sabbirbhai Hasanali Pulavwala and Others, and Karumanchi Subba Rao Vs. Yarlagadda Venkatappaiah and Others, On the strength of these judgments, it is stated that once claim of the plaintiff is not disputed by the defendant No. 4, by no stretch of imagination, the defendant No. 4 can be held to be adverse party and therefore, the Court below has not committed any error of law in disallowing the prayer for cross examination of witnesses of co-defendants.

Shri Mahesh Goyal, learned counsel for the plaintiff/respondent No. 1 borrowed the contentions of Shri Bharadwaj and supported the orders passed by the Court below.

In rejoinder submissions, Shri N.K. Gupta heavily relied on a Division Bench judgment of this Court reported in Rajendra Nagrath Vs. Col., V.L. Vohra and Others, By taking assistance from the said judgment, it is stated that the Court below has erred in not treating the defendant No. 4 as an adverse party.

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

Before dealing with the rival contentions of the parties, I deem it proper to restate the scope of interference under Article 227 of the Constitution of India. In catena of judgments, the Apex Court held that while exercising the jurisdiction under Article 227 of the Constitution, the primary consideration of this Court is to ensure that the Courts below act within the bounds of their authority. This jurisdiction is not appellate in nature and therefore, the entire matter is not required to be examined on the anvil of test laid down for appellate jurisdiction. When orders suffer from jurisdictional error, palpable procedural irregularity or impropriety, interference can be made. Interference is not required to be made even on a wrong order in a routine manner on a drop of hat. Another view is possible, is not a ground to interfere in writ jurisdiction under Article 227 of the Constitution.

In the present case, the competence and jurisdiction of the Court below is not called in question. The petitioner and respondent No. 1 are on the same footings, whereby they have criticized the impugned order on the basis of propriety and the procedural flaw. Firstly, it is contended that the Court below has committed an error to refuse the defendant No. 4 to cross-examine the plaintiff witness and abruptly closed down his right at 4.25 PM. However, a microscopic reading of this order shows that matter was taken up on various occasions on the same day by the Court below. At 11 AM also defendant No. 4 was not present. Matter was again taken up at 12 PM, defendant No. 4 was present and at this stage, the plaintiff made certain allegations against the Presiding Officer of the trial Court. The Court expressed its displeasure and opined that incorrect and false allegations are made against the Court, which definitely amounts to contempt of Court and therefore, if plaintiff is aggrieved, he can file an application u/s 24 of the CPC for transferring of the matter before some other Court. Malicious and false allegations cannot be entertained nor the trial of the matter can be postponed by the Court. Thereafter, all the parties appeared at 1-00 PM and in their presence matter was fixed at 3.30 PM for the purpose of cross-examination of plaintiff witness. However, without assigning any reason, the defendant No. 4 remained absent when matter was taken up at 3.30 PM and continued till 4.25 PM. Thus, the conduct of the petitioner is peculiar where in the first half he was absent and remained present at 1-00 PM and did not inform the Court that he has difficulty or inconvenience if matter is taken up by 3.30 PM. In the presence of all the parties, Court below has fixed the matter at 3.30 PM. No application for grant of time was made by defendant No. 4 when matter was taken up and continued from 3.30 PM to 4.25 PM. It is stated that merely because on one occasion, the defendant No. 4 was not present, the Court has committed an error in closing the right of cross examination. On the face of it appears to be an attractive argument, but if examined in the entire context and the background, in which incidents took place, it is clear that such conduct is not expected from a proper litigant. The Supreme Court in catena of judgments has held that litigation before the Court of law is not a game of chess and accordingly the litigants are required to act in accordance with law and no hide and seek can be permitted to be played in the Court. The Apex Court in its recent judgment in Vishram Singh Raghubanshi Vs. State of U.P., has opined as under:-

Thus, it is apparent that the contempt jurisdiction is to uphold the majesty and dignity of the law courts and the image of such majesty in the minds of the public cannot be allowed to be distorted. Any action taken on contempt or punishment enforced is aimed at protection of the freedom of individuals and orderly and equal administration of laws and not for the purpose of providing immunity from criticism to the Judges. The superior courts have a duty to protect the reputation of judicial officers of subordinate courts, taking note of the growing tendency of maligning the reputation of judicial officers by unscrupulous practising advocates who either fail to secure desired orders or do not succeed in browbeating for achieving ulterior purpose. Such an issue touches upon the independence of not only the judicial officers but brings the question of protecting the reputation of the institution as a whole.

The dangerous trend of making false allegations against judicial officers and humiliating them requires to be curbed with heavy hands, otherwise the judicial system itself would collapse. The Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are in the interest of none. "Liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary." A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client maligning the reputation of judicial officers merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalize the court which would shake the confidence of the litigating public in the system, would cause a very serious damage to the institution of judiciary. An advocate in a profession should be diligent and his conduct should also be diligent and conform to the requirements of the law by which an advocate plays a vital role in the preservation of the society and justice system. Any violation of the principles of professional ethics by an advocate in unfortunate and unacceptable.

In view of the conduct of respondent No. 4, it is clear that respondent No. 4 was deliberately avoiding the proceedings at 3.30 PM on 14/10/2011 and in those circumstances it cannot be said that Court below has erred in closing the right of cross-examination of the plaintiff. The order by the Court is not without authority of law and a plausible view is taken up by the Court below, which does not warrant any interference by this Court.

So far the question of closing the right to lead evidence of defendant No. 4 is concerned, I find force in the arguments of Shri N.K. Gupta that merely because the affidavits have not been filed on the same date, the right to lead evidence or file affidavit cannot be closed down. This view is taken up by this Court in Mayadevi Kukreja (Smt.) Vs. Meera Agrawal and Another, The relevant portion of judgment reads as under:-

10... It is not obligatory on the part of a litigant to produce evidence of a fresh witness before cross-examination of the previous witness is concluded. It is only after conclusion of cross-examination of a particular witness that the litigant may decide whether to produce further evidence or not. This is an absolute choice of a party which cannot be curtailed by the Court in the impugned manner. However, adjournment for this purpose may be refused in exercise of powers conferred by virtue of proviso to sub-rule (1) of Order XVII, Rule 1, Civil Procedure Code. Thus if a litigant before closure of his evidence submits an affidavit containing chief examination of a fresh witness and keeps such witness available for cross-examination without seeking adjournment for this purpose, the trial Court shall have to take the affidavit on record and allow opponent to cross-examine the witness. In such a situation, the trial Court has no power to refuse the affidavit by invoking the proviso to Order XVII, Rule 1, Civil Procedure Code. It is further made clear that if a party submits affidavit alone and prays for adjournment to make deponent available for cross-examination, the trial Court shall have power to refuse to accept the affidavit by invoking such proviso.

Thus, right to file affidavit cannot be curtailed on the ground that affidavit under Order 18 Rule 4 CPC are not filed simultaneously. I do not find force in the argument of Shri Bhardwaj that the Court below has fixed a time schedule within which the petitioner was required to file his affidavit, failing which right was rightly closed down. The Courts used to fix a time and decide as to how the parties are required to proceed. However, while following the same, the basic principles of law can not be forgotten and therefore, merely because Court below fixed the time limit, right to lead evidence cannot be taken away. At the cost of repetition, it may be remembered that merely because of not filing the affidavit in one go the right to file affidavit of defendant cannot be closed down. Thus, petitioner deserves success on this count.

So far the question of closing the right of defendant to cross examine the witnesses of other co-defendants is concerned, the Court below has given the following finding:-

The aforesaid reproduced portion shows that the Court below has applied its mind and has given a specific finding that the averment of plaint regarding ownership of Joint Hindu Family is not disputed by the defendants nor defendant No. 4 has filed any counter claim. In view of the pleadings of the parties, the Court below opined that the defendant No. 4, by no stretch of imagination, can be said to be an adverse party. Shri N.K. Gupta although relied on the Division Bench judgment of this Court in the case of Rajendra Nagrath (supra), a perusal of Para 7 & 8 of the said judgment makes it crystal clear that factum of will was disputed by the defendants in reply to the relevant application. In view of the dispute raised by the defendants, the Division Bench opined that adverse party has a right to cross examine the witness upon their affidavits. However, in the present case, the Court below after marshalling the pleadings of the parties, rightly opined that there is no such defence taken by the defendant No. 4 and therefore, defendant No. 4 cannot be said to be an adverse party. Shri Bhardwaj rightly relied on Hussens Hasanall Pulavwala Vs. Sabbirbhai Hasanali Pulavwala and Others, and Karumanchi Subba Rao Vs. Yarlagadda Venkatappaiah and Others, , the relevant portion of the judgment reads as under:-

Section 137 confers right to cross-examine witness upon the person concerned only when he has an interest adverse to the one who is proposed to be cross-examined. The very purpose of the cross-examination is to test the veracity of the witness. Therefore where in a suit by the partner against the other partners for declaration that the debt due by the plaintiff to the defendants was partially discharged, the defendants specifically admit in their written statement that the accounts were properly maintained by the plaintiff and request the court to decree the suit as prayed for the defendants cannot be said to have an interest adverse to that of the plaintiff and therefore they cannot be permitted to cross-examine the plaintiff because they have no statutory right to do so.

For the reasons stated above, the judgment of Rajendra Nagrath (supra) is clearly distinguishable and has no application in the facts and circumstances of the present case. On the contrary, the judgments of Gujrat and Andhra Pradesh High Courts will hold the field. Accordingly, I find no legal error in the conclusions drawn by the Court below while rejecting the right to cross-examine the witness of co-defendants. Accordingly, to this count petition deserves to be dismissed.

On the basis of aforesaid analysis, the petition deserves to succeed only on second count, i.e., to lead evidence on the basis of affidavits.

Accordingly, the said order dated 01/11/2011 is set aside and the Court below is directed to permit the petitioner to file affidavits under Order 18 Rule 4. It is made clear that only one opportunity be granted to the petitioner for filing the affidavit. On the aforesaid analysis, the other orders impugned herein are upheld. Petition is disposed of. No costs.