Harish Chandra vs Rahul Kumar
2017 Latest Caselaw 2689 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 2
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 4471 of 2017
 

 
Petitioner :- Harish Chandra
 
Respondent :- Rahul Kumar
 
Counsel for Petitioner :- Dharmendra Kumar Mishra
 
Counsel for Respondent :- Ajit Kumar
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Dharmendra Kumar Mishra, learned counsel for the defendant/ petitioner and Sri Syed Irfan Ali, holding brief of Sri Ajit Kumar, learned counsel for the plaintiff/ respondent.

2. Briefly stated facts of the present case are that the plaintiff/ respondent is the owner and landlord of a shop situate at B-Das Compound, G.T. Road, Aligarh in which the defendant/ petitioner is a tenant. After following due procedure of law, a S.C.C. Case No. 92 of 2006 was filed by the plaintiff/ respondent on 22.12.2006 praying for eviction of the defendant/ petitioner and recovery of rent. In para 3 of the plaint, the plaintiff/ respondent took the stand that the disputed shop is newly constructed and the provisions of U.P. Act No. 13 of 1972 are not applicable. The evidence of plaintiff/ respondent was closed  on 03.08.2012. However, on 07.05.2013 the plaintiff/ respondent submitted an application being Paper No. 76-C filing certified copy of Tax Assessment Register of Nagar Nigam, Aligarh to establish that the disputed shop is newly constructed and the provisions of U.P. Act No. 13 of 1972 are not applicable. The said application was rejected by the Additional Judge, Small Causes Court, Aligarh vide order dated 15.05.2013 on the ground that Paper No. 76-C has been filed belatedly while the case is listed for final hearing. Against the aforesaid order dated 15.05.2013 the plaintiff/ respondent filed S.C.C. Revision No. 22 of 2013 (Rahul Kumar Vs. Sri Harish Chandra) which has been allowed by the impugned order dated 03.05.2017 passed by the court of Additional District Judge, Court No. 8, Aligarh. Aggrieved with this order, the defendant/ petitioner has filed the present petition under Article 227 of the Constitution of India.

3. In the impugned order, the revising authority recorded a finding that the document being paper no. 76-C filed by the plaintiff/ respondent is a relevant document for determination of the question as to whether the provisions of Act No. 13 of 1972 shall be applicable or not. He further observed that for the delay in filing the said evidence may be compensated by imposition of cost. Consequently, the revision was allowed on a cost of Rs. 2,000/- and the order dated 15.05.2013 passed by the learned Additional Judge, Small Causes Court was set aside.

4. Facts of the present case clearly indicates that a question with regard to the applicability of the provisions of U.P. Act No. 13 of 1972 was raised by the defendant/ petitioner. For determination of this question, certified copy of the aforesaid record of Nagar Nigam, Aligarh is a relevant document which is a public document. It is settled law that the delay caused in filing the evidence may be compensated by cost in appropriate cases. To examine as to whether the Revisional Court lawfully exercised the power conferred on it to take on record in evidence the aforesaid document, it would be appropriate to examine the legal position in this regard.

5. The power to recall any evidence under Order XVIII Rule 17 C.P.C. by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power, is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. These principles find support from the law laid down by Hon'ble Supreme Court in the case of Vadiraj Naggappa Vernekar Vs. Sharadchandra Prabhakar Gogate1.

6. In the case of K.K. Velusamy Vs. N. Palanisamy2 (pr 12) Hon'ble Supreme Court rejected the contention that Section 151 cannot be used for re-opening evidence or for recalling witnesses. Referring to its earlier decisions, in the case of Padam Sen Vs. State of U.P.3; Manoharlal Chopra vs. Seth Hiralal4; Arjun Singh Vs. Mohindra Kumar5; Ram Chand and Sons Sugar Mills (P) Ltd. Vs. Kanhay Lal6; Nain Singh Vs. Koonwarjee7; The Newabganj Sugar Mills Co. Ltd. vs. Union of India8; Jaipur Mineral Development Syndicate Vs. Commissioner of Income Tax, New Delhi9; National Institute of Mental Health & Neuro Sciences Vs. C Parameshwara10; and Vinod Seth Vs. Devinder Bajaj11, Hon'ble Supreme Court summarized the scope of Section 151 C.P.C. as under:

"(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.

(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.

(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the  applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court."

7. In the case of K.K. Velusamy Vs. N. Palanisamy (supra) Hon'ble Supreme Court considered the effect of deletion of Order XVIII Rule 17A with effect from 01.07.2002 and held that the deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.

8. After elaborate discussion on the question of production of evidence or for opening the evidence or for recalling of any evidence for further examination, Hon'ble Supreme Court in the case of K.K. Velusamy Vs. N. Palanisamy (supra) held as under:

"10. Order XVIII Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in- chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order XVIII Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

19. We may add a word of caution. The power under section 151 or Order XVIII Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bonafide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.

20. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application.

21. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. Courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, re-opening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency."

9. A careful reading of the provisions of Section 151, Order XVIII Rule 17 and the deleted provisions of Order XVIII Rule 17-A of the Civil Procedure Code shows that the power under Order XVIII Rule 17 is a discretionary power which may be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. However, it should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. This power should not be used to fill up omissions on the evidence of a witness who has already been examined.

10. Section 151 of the Code recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong'. Thus this power can be invoked to do all things necessary to secure the ends of justice and prevent abuse of its process. The power under Section 151 C.P.C. cannot be exercised by a court to do a thing which is prohibited by law or the Code or where the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter. Thus, where the remedy of procedure is provided under the Code, the courts cannot invoke the special provisions of Section 151 C.P.C. The inherent power under Section 151 C.P.C. Should be exercised by the court cautiously, in the absence of any legislative guidance to deal with the procedural situation. The exercise of this power depends upon discretion and wisdom of the court on the facts and circumstances of each case to meet the ends of justice and to prevent abuse of process of Court. The court should also see that the bonafides of the applicant cannot be doubted.

11. Deletion of Order XVIII Rule 17-A w.e.f. 01.07.2002 does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. If there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose. These powers cannot be used in a routine manner or mere on asking, otherwise, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bonafide and where the additional evidence, oral or documentary, which may assist the court to clarify the evidence on issues and will assist in rendering justice, and the court is satisfied that non-production of such evidence earlier, was for valid and sufficient reason, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. While exercising such discretion, the court should firstly award appropriate costs to the other party to compensate for the delay and should take up and complete the case within a fixed time schedule so that the delay is avoided. But, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.

12. In the light of above discussion and the law laid down by Hon'ble Supreme Court in the decisions afore mentioned, I find that the certified copy of Tax Assessment Register of Nagar Nigam, Aligarh relating to the disputed shop was a relevant public document admissible in evidence, for the purpose of correct determination of issues to render justice. Facts of the case shows that the application for taking in evidence the document in question was bonafidely filed by the petitioner. Therefore, the revisional court, in the interest of justice, has not committed any error of law to permit the plaintiff/ respondent to produce the said evidence, subject to payment of cost of Rs. 2,000/-.

13. In view of the aforesaid, I do not find any infirmity in the impugned order. Consequently, the petition is dismissed.

Order Date :- 26.7.2017

IrfanUddin