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Bombay High CourtIndian Cases

Steelage Industries Limited And … vs Smt. Chander Begai on 22 November 1991

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Bombay High Court
Steelage Industries Limited And … vs Smt. Chander Begai on 22 November, 1991
Equivalent citations: AIR1992BOM406, 1991(4)BOMCR24, 1992(1)MHLJ857, AIR 1992 BOMBAY 406, (1992) MAH LJ 857, (1992) 1 MAHLR 757, (1991) 4 BOM CR 24
1. Can a litigant invoke the inherent powers of a civil Court u/S. 151 of the Code of Civil Procedure, 1908 for purposes of circumventing the statutory provisions on the ground that the interests of justice would condone such a procedure. The obvious answer is an emphatic no particularly where what is defined as justice to one party, in reverse results in injustice to the opponent, The present petition deals with a mixed question of fact and law and touches upon one of the situations in which interference under Art. 227 of the Constitution of India may be necessary, not to set aside an order but to correct it.

2. The petitioners before me are the Defendants in R.A.L. Suit No. 1386/4379 of 1987 instituted by the landlady Smt. Chander Bagai. The Respondent has sought recovery of possession of the premises on the ground of bona fide use and requirement and the history of the proceeding discloses a rather unpleasant background. The Respondent succeeded in obtaining an order for expedition of the suit from this Court, and pursuant to this direction on 3-10-1991 the matter was listed before the Court of Small Causes, Bombay. It appears that on that day, according to the Defendants, the Respondent insisted on going on with the suit; whereas it is her version that the Court took up the matter because it was an expedited case. One Advocate Deshpande conducted the examination-in-chief in the morning session, which ex animation-in-chief was carried over to the afternoon. Thereafter rather extensive cross-examination of the witness was completed. On the next date of hearing, which was 8-10-1991, Advocate Murthy pointed out to the Court that he was the Counsel briefed in the matter, that the relevant documents pertaining to the proceeding were in his brief, that he met with a grievous accident on the way to Court and was not in a position to communicate this fact as a result of which the matter had proceeded in his absence. He requested for time to file an application, which was done on 15-10-1991. The application is rather vaguely worded, but in substance, it sets out the position that in the aforesaid circumstances the matter had effectively gone by default because the requisite evidence in relation to the grounds and the justification on the basis of which the relief was claimed from the Court, namely, the bona fide use by the landlady had not been brought out in evidence by Advocate Deshpande and that, consequently, the Court should permit the plaintiff to re-enter the witness-box and complete the examination-in-chief, after which alone the cross-examination should continue. This application was strongly opposed by the present petitioners, who are the Defendants, principally on the ground that they had cross-examined the Plaintiff at length and, according to them, demolished the case and that, consequently, the attempt now made was an afterthought and, in actual fact, was an attempt to fill up the lacunae and rebuild the Plaintiff’s case. The Defendants also argued that there is virtually no legal sanction for such a procedure and they added that the Plaintiff was duly represented by Advocate Deshpande, who had appeared on her behalf earlier, that no grievance was made to the Court either by the Plaintiff or by that Advocate about their being handicapped in any manner by Mr. Murthy’s absence, nor was arty application made for adjournment and that, consequently, the application lacked bona fides. The trial Court passed an order to the effect that the Plaintiff was entitled to reenter the witness-box and complete her evidence by way of examination-in-chief only to that extent as was set out in the pleadings. A consequential order for costs was also made. The order of the trial Court is under challenge. At the stage of admission the matter having been argued at some length, I considered it inappropriate to keep this proceeding pending and, therefore, set it down for final hearing.

3. Mr. Shroff, learned Counsel appearing on behalf of the Petitioners, has essentially contended that this is not a case which can be said to have gone by default because the Plaintiff was represented by her advocate Mr. Deshpande, who conducted her examination-in-chief, and that the evidence would indicate that she is a business woman of considerable experience and, consequently, that she has not been prejudiced in any manner by the unfortunate accident to Mr. Murthy. Mr. Shroff also pointed out that the case is distinguishable from the once where the Court exercising in the inherent powers has given a litigant a fair chance. He therefore, submitted that the exercise of discretion by the trial Court itself was only uncalled for.

4. As against this, it is contended by Mr. Murthy on behalf of the Respondent that he was incharge of the conduct of the proceedings which fact is undisputed and that Mr. Deshpande only deputised for him. He produced before me a copy of the Plaint and the evidence of the Plaintiff and stated that in actual fact the matter has gone by default because the most important ingredients that are required to be established by the Plaintiff and which have been specifically pleaded in the plaint have not come on record in her evidence. He further stated that the matter was not scheduled for hearing and, therefore, the plaintiff herself was unprepared in a four year old litigation and in these circumstances he contended that it would be unfair to the Plaintiff, particularly when her advocate was absent due to accident, if she were not given an opportunity of establishing her case. As regards Mr. Shroff’s argument that the remaining witnesses are yet to depose, Mr. Murthy rightly countered this contention by pointing out that if the plaintiff does not establish a case of bona fide use and requirement that no amount of support from the other witnesses is at all sustainable.

5. It needs to be emphasised here that the conduct of a litigation, if it is to result in a correct decision, presupposes that at all stages the litigation is conducted in an atmosphere of total fairness. Procedural technicalities do sometimes provide for an unfortunate situation but a litigant cannot and ought not to be deprived of a fair opportunity of presenting a case before a Court of taw, particularly when the reasons therefor are unprecedented. To that extent, the exercise of the powers u/S. 151 of the Code of Civil Procedure was rightly done by the trial Court and such corrective action, to my mind, was equally necessary in order to obviate further litigation. Had it been pointed out at an appellate stage that the proceedings were vitiated because of the aforesaid circumstances, it would have been open to the appellate Court to order a de nove hearing, resulting in a considerable expenditure of judicial time. While exercising the inherent powers under S. 151 of the Code of Civil Procedure, therefore, the Court is necessarily required to consider all these angles because one of the predominant requirements of the administration of justice and the interests of justice, as we define them today, is the avoidance of any waste of judicial time and multiplicity of proceedings. Corrective action at the earliest point of time is, therefore, an essential requirement for which S. 151 of the Code of Civil Procedure must be utilised.

6. The main plank of Mr. Shroff’s argument, however, centres around a substantial challenge on a point of law. In the first instance, he submits that the Evidence Act prescribes the manner in which the evidence of a witness is to be taken and after the first stage of examination-in-chief, the cross-examination continues and he contends that except for the re-examination, where the scope is limited, the only provision available for re-introduction of the witness in the witness-box is by way of recall under Order 18, Rule 17 and Rule 17A of the Code of Civil Procedure. Mr. Shroff relies on the case law and on the basis of the decisions, to which I shall refer presently, he contends that though this power exists that it is to be used very sparingly and in exceptional circumstances. Mr. Shroff illustrates his point by stating that it would virtually open the flood gates if a witness were to be permitted to supplement the examination-in-chief because the entire effect of the cross-examination could be nullified or watered down and it would be no consolation to the Defendants to thereafter cross-examine the witness. He, therefore, submits that on the special facts of the present case, nothing exceptional having been demonstrated, the powers of recall should not be resorted to. Extending his arguments, Mr. Shroff submits that the resort to S. 151 of the Code of Civil Procedure is wholly impermissible because there is a clear bar to the use of the inherent powers in cases where the statute provides otherwise. He states that the Evidence Act would not permit a second examination-in-chief under any circumstances and that Order 18, Rule 17 and 17 A of the Code of Civil Procedure would similarly sanction such a procedure because it is a power limited to the Court which may recall a witness virtually for the purpose of clarification or supplementing the evidence on points which the Court considers necessary. In substance, Mr. Shroff submits that the Respondent has invented a clever ruse of circumventing these provisions by invoking S. 151 of the Code of Civil Procedure and he submits that such a procedure has no legal sanction.

7. Adverting to the position in law, Mr. Shroff relied on a decision of the Supreme Court in the case of Smt. M. M. Amonkar v.

r. S.A. Johari, and, in particular, to the observations in para (10) of that judgment where the Supreme Court has held that the powers under Order 18, Rule 17 of the Code of Civil Procedure were to be exercised in exceptional circumstances. Mr. Shroff submitted that the present case is identical to the one before the Supreme Court and that no exceptional circumstances exist in this case. Mr. Shroff thereafter placed reliance on a decision of the Karnataka High Court in the case of Shankara Bhat v. Bheema Bhat, AIR 1974 Kant 123, wherein the Court, while interpreting Order 18, Rule 17 of the Code of Civil Procedure, pointed out that the recall of a witness is not restricted to action on the part of a Court on its motion and that it can recall a witness at the instance of one of the parties. The Court had also observed that in such circumstances, only the Court can put questions to the witness, and ordinarily cross-examination would not be permitted except with the leave of the Court. The Karnataka High Court followed the decision of this Court in the case of Madhubhai Amthalal v. v. Amthalal Nanalal, AIR 1947 Bombay 156; and in the case of Salsh Bin Omer v. Vijayachand, . Mr. Shroff then relied on’ a decision of the Allahabad High Court in the case of Altaf Hussain v. Narseen Zehra, . The Court observed that Order 15 Rule 17 of the Code of Civil Procedure provides a Court with a power which is necessary “for the proper conduct of a case.” Though the Court observed that the power is to be used for resolving ambiguities or for clarification, a guideline has been laid down that the Rule should be sparingly used and in exceptional cases only. It was also observed that it is open to a party to suggest questions to the Court to be asked to the witness, but that cross-examination of the witness thereafter is not a matter of right. Reliance was also placed on a decision of the Rajasthan High Court in the case of Pabudan v. Mahesh Industries, . In a short judgment, the ‘Rajasthan High Court laid down that the exercise of the powers under Order 18, Rule 17 of the Code of Civil Procedure should be supported by cogent reasons. Mr. Shroff contended that no such justification is available in the present case. Mr. Shroff thereafter relied on a decision of the Punjab and Haryana High Court in the case of Om Parkash v. Saruna . Both learned Counsel before me have placed strong reliance on this decision which deals with a case pertaining to a will wherein due to the lapse of Counsel, the attesting witness was not exanfined and the Court held that in view of Rules 17 and 17A, the party was entitled to examine the witness again on the point of attestation of the will as inadvertantly no questions were put to him on this point in his earlier examination. The Court further observed :

“A party could not be allowed to suffer for any omission or lapse on the part of him Counsel, when it relates to requirement of any law. The rules of procedure are meant to advance the cause of justice. Moreover, the opposite party could be compensated by payment of costs.”
Where as it is Mr. Shroff’s contention that the supplementing of the examination-in-chief in the present case is not a requirement of law, Mr. Murthy has vehemently contended that the evidence in relation to the bona fides on the part of the plaintiff is a most vital and essential requirement of the law.

8. Lastly, Mr. Shroff relied on a decision of this Court in the case of Union of India v. M.K. C. Kutty. . The Court had, in that case, observed that a legal right is a precondition and the question as to whether prejudice is caused to the opposite party or not is secondary. Mr. Shroff is more than justified in this regard because a party claiming a relief of an extraordinary nature from a Court must justify the correctness or validity of that action within the framework of law. It is no argument before a Court that little or no harm or prejudice will result to the opposite party.

9. Mr. Murthy, on the other hand, has submitted that an unforseen accident took place on that day and the further fact that the matter was unexpectedly taken up and that too that it reached the stage of cross-examination were all exceptional situations and, more importantly, that even though the plaintiff had very specifically made out a detailed case in the pleadings that Advocate Deshpande did not lead her evidence on this point, are all factors that are more than sufficient to establish that the situation was out of the ordinary. He also submitted that it is a definite requirement of law that the plaintiff must substantiate in the course of oral evidence the case made out in the pleadings and to that extent if there is a lapse on the part of Counsel, it is essential that corrective steps be taken, as otherwise the damage would be irretrievable. He submitted that this is not a case where any lacunae are attempted to be filled up because the Defendants have full notice of what is stated in the pleadings and it is, therefore, only a procedural necessity that these aspects should be introduced in the oral evidence.

10. Mr. Murthy tried to pitch his case higher than Order 18, Rule 17 of the Code of Civil Procedure by contending that there is no explicit bar to the supplementing of the examination-in-chief since the witness has still not concluded her evidence and that, consequently, the resort to S. 151 of the Code of Civil Procedure is permissible. Mr. Murthy placed strong reliance on a decision of the Orissa High Court in the case of Chairman, M.A. Councilv. K. L. Patra, , wherein the Court held on the facts of that case, that an application for recalling a witness for cross-examination because the Advocate for the plaintiff was not present in the Court at that time was permissible. The facts of that case are distinguishable because the party had not been cross-examined and, therefore, the Court recalled the witness and afforded an opportunity. Mr. Murthy also relied on the observations of the Supreme Court in the case of Padam Son v. State of U.P., , wherein the Court has observed as follows :–

“The inherent powers of the Court are in additions to the powers specifically conferred on the Court by the code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well-recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.”
11. Next, Mr. Murthy relied on a decision of the Andhra Pradesh High Court in the case of Saltan Salesh Bin Omer v. Vijayachand, . The Court has taken a rather unusual view in that case where, at a very late stage, an application was made for additional evidence and the Court sanctioned such evidence, holding that it was permissible under the inherent powers embodied in S. 151 of the Code of Civil Procedure. The facts in that case are again distinguishable, but Mr. Murthy relied on the principle for purposes of contending that it is wrong on the part of the petitioners to state that there is no legal sanction for the recall of the Plaintiff and continuance of her examination-in-chief.

12. The principles enunciated in these decisions represent a rather well-settled position in law. What needs to be borne in mind is that a stage of finality must be imported to each segment of the proceedings and if a degree of firmness is not insisted upon, the litigants and their counsel may feel encouraged to make multifarious applications for recalling witnesses and thereby take the case virtually in circles. Not only would this be in total breach of the existing provisions but it could only add to the existing burden on Courts and the protraction of the litigation. The Courts have, therefore, very correctly observed that such powers must be sparingly exercised in exceptional cases. In so observing, the principle has been culled out that though one needs to be firm, it should not, by implication, result in a situation of inflexible rigidity. The accident suffered by the Advocate in the present case was unprecedented, and if as a result the essential requirements of the case have not come on record and his application was made at the earliest point of time, the present case is distinguishable and would permit corrective action. That does not, however, mean that a blanket permission be granted to the Plaintiff’s Counsel to continue with the examination-in-chief, because it would result in a considerable upheaval of the record. The cross-examination of the Plaintiff, shall therefore, be completed and the Court shall thereafter recall the witness and put to her questions in relation to the contents of para (3) of the plaint in relation to the general head bona fide requirement and record her evidence along with the documents, if any, in support. A perusal of the evidence indicates that the cross-examination in respect of this aspect will have to be permitted if one is to be fair to the other side. The learned trial Judge shall accordingly permit the same.

13. Mr. Murthy advanced a strong plea that the Plaintiff’s Counsel be allowed to conduct the examination. To my mind, such a procedure cannot be permitted because the power of recall permits the Court to conduct the examination. If corrective action is to be taken, such steps must also be in confermity with the provisions of law and, therefore Mr. Murthy’s application cannot be granted. However, it would be permissible for the Plaintiffs learned Counsel to prepare a proof of that part of the evidence which has been left out and to submit the same to the learned trial Judge for his assistance. I do not share the view that where the Code of Civil Procedure circumscribes the limit within which recall is permissible that these can be by passed or circumvented by having resort to S. 151 of the Code of Civil Procedure for the purpose of reconducting the examination-in-chief, because that would be flying in the face of not only these provisions but the provisions of the Evidence Act.

14. Mr. Murthy advanced an argument that this Court should not interfere in a matter of the present type, particularly at an interlecutory stage and that Art. 227 of the Constitution cannot be invoked for this purpose. He contended that the trial Court has exercised its discretion and has allowed remedial action by way of repairing the damage and, consequently, that the order is perfectly valid. In substance, this contention cannot be faulted, but a perusal of the order passed in the present case does indicate that the trial Court has erred to a limited extent in permitting the examination-in-chief to be supplemented. The petitioners are justified in challenging this part of the order because it would result in a dangerous situation whereby a witness is permitted to recommence the evidence in the midst of a cross-examination. Apart from this resulting in total confusion, it could be in violation of law and, therefore, limited interference is essential. The present case presents one of these situations where this Court in exercise of its general powers of superintendence, even though not inclined to set aside an order, finds it essential to modify and correct it.

15. The petition succeeds partly. The impugned order dated 28-10-1991 shall stand modified to the extent that after the conclusion of the cross-examination, the trial Court shall recall the plaintiff and shall record the future evidence of the plaintiff in relation to that material which was Omitted from the examination-in-chief, in particular paragraph (3) and the amenmded paragraphs thereafter of the plaint, and the documents, if any support thereof, for the assistance of the Court, it shall be open to the plaintiff’s Advocate to prepare a proof of the evidence that is restricted to this material and to hand the case over to the learned Judge. The petitioners shall thereafter be permitted to further cross-examine the plaintiff on the basis of the further evidence that is as recorded. The order of the trial Court awarding costs to the defendants is maintained. In view of the fact that these procedures will inevitably involve considerable time and have been occasioned by the plaintiff, the time period for disposal of the suit is extended up to 30-6-1992. The rule is partially made absolute accordingly. No order as to costs.

16. Order accordingly.