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Judgment
Heard Shri R.K. Umakanta, the learned Addl. Government Advocate appearing for the petitioners and Ms. Pinky, the learned counsel
appearing for the respondents.
The instant Civil Revision Petition has been filed against the order dated 06-04-2016 passed by the learned Civil Judge (Junior Division), Imphal
East, Manipur by which the prayer of the respondents/ plaintiffs to file additional affidavit has been allowed.
1 The facts of the case as narrated in the Civil Revision Petition are that the respondents/ plaintiffs had filed a suit being O.S. No.
37/2008/9/2015 on 16-06-2008 seeking certain reliefs and in particular, the direction for declaration that the respondents/ plaintiffs have perfected
their rights of title of over their respective suit land by virtue of adverse possession for having possessed the suit land for more than 40 years
uninterruptedly, continuously, openly and adversely. A written statement dated 01-08-2008, denying the averments made in the plaint except those
admitted specifically therein, has been filed on behalf of the petitioners/ defendants stating therein that the plaintiffs are not residing in and around
the area of 2nd Bn. Manipur Rifles covered by C.S. Dag No. 638 and C.S. Dag No. 603. In order to lead evidence, an affidavit by way of
examination-in-chief was filed on behalf of the respondents/ plaintiffs by the respondent No.1/ plaintiff No.1 as PW No. 3 on 10-09-2015 and
immediately thereafter, the respondents / plaintiffs filed a Judl. Misc. Case No.179 of 2015 praying for allowing them to withdraw the said affidavit
of the PW No. 3 and to file another affidavit on the ground that due to bonafide mistake and inadvertence, an error had crept in with respect to
Schedule-B while describing the boundary of the suit land in the said affidavit. The petitioners/ defendants filed an objection stating that the
examination-in-chief once filed by way of an affidavit, could not be amended or withdrawn under any provisions of the CPC as dispensation of
oral evidence by way of examination-in-chief under Order XVIII Rule 4 does not dispense with the procedure for recording of evidence. After
having heard the learned counsels appearing for the parties, the learned Civil Judge (Junior Division), Imphal East, Manipur vide its order dated
27-11-2015 rejected the prayer for withdrawal of the said affidavit dated 10-09-2015 on the ground that the examination-in-chief, once filed by
way of an affidavit under Order XVIII Rule 4, becomes a part of the record and cannot be withdrawn.
3.2 The respondents/ plaintiffs filed another Judl. Misc. Case No. 44 of 2016 on 02-03-2016, under the provisions of Section 151 of the CPC,
praying for allowing the respondent No.1/ plaintiff No.1 to file an additional affidavit to which an objection dated 08-03-2016 was filed by the
petitioners/ defendants as the same would amount to filling up lacuna in his original examination-in-chief filed by way of an affidavit and would
cause great injustice to the petitioners/ defendants and moreover, there is no any provision under the CPC for allowing a party to rectify the error
in its affidavit. However, on 06-04-2016 the learned Civil Judge (Junior Division), Imphal East, Manipur allowed the said application. The relevant
portion of the order is as under:-
On perusal of the additional affidavit sought to be filed, it is seen that it seeks to explain some error that seemingly occurred in the earlier affidavit.
The error pertains mainly to age of the plaintiff, schedule of property and description of suit land. Since in civil cases, examination in chief are
required to be filed in affidavit format, occurrence of typographical error in affidavit is not rare. In the circumstances, it would be unjust to hold that
deponent can never be allowed to explain such error, it will be open to the court to decide the veracity of such explanation. Further compared to
prejudice that will be caused to the plaintiff in case prayer is not allowed far outweighs the prejudice that might be caused to the defendant since
the defendant will be given full opportunity to cross examine the witness in case prayer to file the additional affidavit is allowed.
Being aggrieved by the said impugned order, the petitioners/ defendants have filed the present Civil Revision Petition on various grounds. During
the course of hearing, Shri R.K.Umakanta, the learned Addl. Government Advocate has submitted that the learned Civil Judge failed to appreciate
the mandate and object of the provision of Order XVIII Rule 4 of the CPC; that the impugned order is capricious and has the effect of allowing
the respondents/ plaintiffs to fill up lacuna which is against the basic principle of law; that the learned Civil Judge erred in allowing the respondents/
plaintiffs to file the additional affidavit when their prayer for withdrawal of the affidavit dated 10-09-2015 has been rejected; that the respondents/
plaintiffs have a proper statutory alternative remedy under Order XVIII Rule 17 of the CPC, the provisions of Section 151 of the CPC could not
have been allowed to be invoked. In support of his contention, he has relied upon the decisions rendered by the Hon''ble Supreme Court in State
of Uttar Pradesh & ors. Vs. Roshan Singh & ors, (2008) 2 SCC 488 and Vadiraj Naggappa Vernekar (Dead) Vs. Sharadchandra Prabhakar
Gogate, (2009) 4 SCC 410. On the other hand, Ms. Pinky, the learned counsel appearing for the respondents/ plaintiffs has submitted that the
provisions of Order XVIII Rule 17 are not applicable to the facts of the present case because the same would apply only when the witness had
been examined and that in order to rectify a bonafide mistake, there is nothing wrong in invoking the provisions of Section 151 of the CPC.
Before adverting to the rival contentions of the learned counsels appearing for the parties, this court deems it appropriate to refer to the relevant
provisions of the CPC for which the provisions of Order XVIII Rule 4, Order XVIII Rule 17 and Section 151 of the CPC are reproduced
hereinbelow:-
Recording of evidence. - (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the
opposite party by the party who calls him for evidence.
(2) The evidence (cross-examination and reexamination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been
furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it.
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit.
(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of
the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his
report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:
Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court
at the stage or arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the
commission unless the Court for reasons to be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.
(8) The provisions of rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of
such commission under this rule.
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.
Saving of inherent powers of Court. - Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to
make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
It is not in dispute that the respondents/ plaintiffs filed the said suit being OS No. 37 of 2008 seeking certain reliefs including a relief for declaring
that they have perfected their rights of title over their respective suit lands by virtue of adverse possession and the reliefs sought for by them are in
respect of the plots of land, within Schedule-A land, described as Schedule-B, C, D, E and F as detailed in para 13 of the plaint. The present
controversy concerns only with the plot of land described as Schedule-B measuring an area of 50 feet length and 20 feet in breadth in para 13 (i)
which is reproduced herein below:
13(i) That, the plaintiff No. 1 possesses his plot of land within the Schedule ''A'' land described as SCHEDULE ""B"" suit land measuring 50 feet in
length and 20 feet in breadth which is bounded on the:-
North : War Cemetery Fencing;
South : Naga Nallah;
East : P.W.D. Road towards Dewlahland; and
West : Plot of Aisulam Taithul (Plantiff 5).
Admittedly, an affidavit dated 10-09-2015 in the form of an examination-in-chief was filed by the respondent No.1/ plaintiff No.1 as PW.3, the
relevant portion thereof is as under:-
That, I and other plaintiffs have constructed my / their respective permanent dwelling houses in our respective shares inside the said colony. The
Revenue Department, Government of Manipur recognized our lawful possession over the said colony and that the said Department issued Dag
Chitha as per our occupation in the said colony. I and plaintiffs No. 2 and 4 namely, Oinam Tombi Singh and Kamsuan Lianzou and Thokchom
Johnson have been possessing a portion measuring 18ft. x 18ft. out of the said Dag No. 638 measuring 1.178 acres. Wherein my shares measures
50ft. in length and 20ft. in breadth. My said portion is described as schedule-F in the plaint. I can described boundary of my said portion and is
bounded on the :
North :- War Cemetery Fencing;
South :- Naga Nallah;
East :- P.W.D. Road towards Dewlahland; and
West :- Plot of Asiulam Taithul (Plantiff 5).
My said portion i.e., Schedule-B is part and parcel of the Schedule-A land. This is true to the best of my knowledge.
In the said affidavit, the plot of land alleged to have been possessed by the respondent No.1/ plaintiff No.1 has been described as Schedule-F,
although in the pliant it is described as Schedule-B. According to the respondents/ plaintiffs, it was a bonafide mistake and in order to rectify it, the
said application being Judl. Misc. Case No.179 of 2015 was filed praying for withdrawal of the said affidavit which was rejected by the learned
Civil Judge (Junior Division) on the ground that the affidavit in the form of an examination-in-chief, once filed, cannot be withdrawn. Having no
alternative, the respondents/ plaintiffs filed another application being Judl. Misc. Case No. 44 of 2016 under the provisions of Section 151 of the
CPC praying for permission to file an additional affidavit, the relevant portion thereof is as under:-
That due to bonafide mistake and inadvertence, there occurs some typical mistake in the affidavit of the petitioner/ plaintiff No. 1 namely, P.
Thoiba, filed on 10-09- 2015, relating to the schedule of his portion as ""F"" wrongly in placed of Schedule ""B"".
That, in the said affidavit it was also wrongly typed that a portion of land measuring 18ft. x 18ft. out of the Dag No. 638 has been occupying by
plaintiffs No. 2, 4, 5 and by petitioner. But the land occupied by the petitioner, plaintiff No. 3 and 5 will be under Dag No. 603. Now the
petitioner is required to rectify the said mistake by filing additional affidavit enclosed.
The whole controversy has arisen out of a desire of the respondents/ plaintiffs for rectifying the mistake that has crept in the affidavit dated 10-
09-2015 filed by the respondent No.1/ plaintiff No.1. It is true that in the pliant and in particular, para 13 (i), it has been stated that the respondent
No.1/ plaintiff No.1 is in possession of a plot of land described as Schedule-B within the Schedule-A land. But in para 3 of the affidavit dated 10-
09-2015, it has been stated by him that his portion is described as Schedule-F and moreover, it has also been stated therein that his portion i.e.
Schedule-B is part and parcel of the Schedule-A. From these two averments made by the respondent No.1/ plaintiff No.1, the mistake appears to
be a bonafide one. But an attempt made by him for withdrawal of the said affidavit, has been rejected by the learned Civil Judge (Junior Division),
as it is impermissible in law on the ground that it has formed part of the evidence. In order to rectify the mistake, the prayer for invoking the
provisions of Section 151 of CPC was allowed by the learned Civil Judge (Junior Division). The short question that arise for consideration by this
court is as to whether, in the facts and circumstances, the learned Civil Judge (Junior Division) is justified in allowing the filing of an additional
affidavit by invoking the provisions of Section 151 of CPC for purpose of rectifying a bonafide mistake. As has been stated hereinabove, the
learned Government Advocate has submitted that the invoking of the provisions of Section 151 is impermissible when there is a specific provision
under the CPC namely, Order XVIII Rule 17. Combating it, Ms. Pinky, the learned counsel appearing for the respondents/ plaintiffs has submitted
that the provisions of Order XVIII Rule 17 are meant for recalling a witness and since the respondent No.1/ plaintiff No.1 has not yet been
examined as a witness, its mistake can be rectified by invoking the provisions of Section 151 of the CPC. Order XVIII Rule 17 confers power
upon the court to recall any witness who has been examined and to put question to him as it may deem fit. But it does not permit a party to re-
examine any witness to fill the lacuna in his evidence and its purpose is to clear the ambiguity that may have arisen during the course of his
examination. The expression ""examined"" which is relevant for the present case, includes the cross-examination as well. In the present case, the
respondent No.1/ plaintiff No.1 has not yet been examined, in the sense that he has not yet been cross-examined by the petitioners/ defendants.
Therefore, the contention of the Government Advocate that the respondents/ plaintiffs ought to have invoked the provisions of Order XVIII Rule
17, appears to be of no substance and moreover, the decisions relied upon by him as aforesaid are not applicable to the facts of the present case.
In State of UP Vs. Roshan Singh (supra) which relates to the examination of the scope of Section 151 of CPC, the Hon''ble Supreme Court held:
The object of Section 151 CPC is to supplement and not to replace the remedies provided for in the Code of Civil Procedure. Section 151
CPC will not be available when there is alternative remedy and the same is accepted to be a wellsettled ratio of law. The operative field of power
being thus restricted, the same cannot be risen to inherent power. The inherent powers of the court are in addition to the powers specifically
conferred on it. If there are express provisions covering a particular topic, such power cannot be exercised in that regard. The section confers on
the court power of making such orders as may be necessary for the ends of justice of the court. Section 151 CPC cannot be invoked when there
is express provision even under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the
provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are
concerned. Undisputedly, an aggrieved person is not remediless under the Act.
In Vadiraj Naggappa Verneker (supra) wherein the issue was as to whether a witness having been examined by way of affidavit evidence can be
recalled for giving further evidence with regard to the facts not mentioned in the affidavit, the Hon''ble Supreme Court held:
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.
There is no and can be no dispute as regards the principles laid down by the Hon''ble Supreme Court in the aforesaid cases. As has been stated
herein above, they will have no application in the present case, as the issue involved herein has not been decided by the Hon''ble Supreme Court in
the said cases. It may be noted that the relief sought for by the respondents/ plaintiffs is not to clear the ambiguity but to rectify the error crept in
the affidavit of the respondent No.1/ plaintiff No.1 while referring to plot of land as Schedule-F instead of Schedule-B. As the remedy is not
available under the provisions of Order XVIII Rule 17, the provisions of Section 15 of the CPC have been invoked, which was allowed by the
learned Civil Judge. Having heard the learned counsels appearing for the parties and perused the materials on record, this court is of the view that
there is nothing infirmity in the impugned order and to allow the respondents/ plaintiffs to rectify the error in tune with what has been stated in the
plaint, will not cause any injustice to the petitioners/ defendants who will be given the opportunity to cross-examine the respondent No.1/ plaintiff
No.1 and moreover, it is for the respondents/ plaintiffs to establish their case in the triel. Therefore, the Civil Revision Petition is devoid of any merit
and is liable to be dismissed.
For the reasons stated hereinabove, the Civil Revision Petition is dismissed with no order as to costs. Interim order granted earlier stands
vacated. List the suit being O.S No.37/2008/9/2015 before the learned Civil Judge (Junior Division), Imphal East on 12-02-2018 and the parties
are directed to appear before it without fail.