Prashant S/O Laxminaryan Jaiswal vs Jagdish S/O Meghjibhai Seth
2016 Latest Caselaw 3460 Bom

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                                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                     NAGPUR BENCH : NAGPUR




                                                                                                                                                                             
                                                              WRIT PETITION NO.2300/2016




                                                                                                                                  
    Prashant s/o Laxminayaran Jaiswal,
    aged about 34 Yrs., Occu. Business, 
    R/o Shrawagi Plots, Opp. Darga,




                                                                                                                                 
    Near Tower Akola, Tq. and Distt. Akola.                                                                                                                    ..Petitioner.

                      ..VS..

    Jagdish S/o Meghjibhai Seth, 




                                                                                                       
    aged 62 Yrs., Occu. Retire, 
    R/o "Ramkunj" Shrawagi Plots,                                   
    Opp. Allahji Dargah, Akola, 
    Tq. and Distt. Akola.                                                                                                                                         ..Respondent.
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                       Shri A.M. Ghare, Advocate for the petitioner. 
                                                                   
                       Shri R.L. Khapre, Advocate for the respondent.
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                                                                     CORAM :  Z.A.HAQ, J.

DATED : 29.6.2016.

ORAL JUDGMENT

1. Heard Shri A.M. Ghare, Advocate for the petitioner and Shri R.L. Khapre,

Advocate for the respondent.

2. Rule. Rule made returnable forthwith.

3. The petitioner - plaintiff has filed the civil suit praying for decree for eviction,

possession and recovery of arrears of rent. The civil suit is now at the stage of

recording of evidence of the parties. At this stage, the respondent - defendant filed an

application under Section 151 of the Code of Civil Procedure contending that the

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claim made by the plaintiff against the defendant is on the basis of an agreement

alleged to have taken place between the vendor of the plaintiff and the defendant and

as the plaintiff is not having personal knowledge of the terms of agreement as

discussed at the time of agreement between the plaintiff and defendant, it is

necessary that the vendor of plaintiff who is cited as witness be directed to enter the

witness box before the plaintiff examines himself.

The learned trial Judge, by the impugned order, has allowed the application

and has directed that before the plaintiff is cross-examined, affidavit in lieu of

examination-in-chief of Shri Sharad Balkrushna Pawar (vendor of plaintiff) be filed.

The plaintiff being aggrieved by this order, has filed the present petition.

The learned Advocate for the respondent - defendant has supported the order

contending that the provisions of Order 18 Rule 3-A and Order 18 Rule 16 of the

Code of Civil Procedure confer jurisdiction on the Court to direct the parties to

examine any particular witness before the concerned party is examined. It is

submitted that there is no provision under the Code conferring power on the Court to

issue directions as sought by the defendant in the present case and, therefore, the

defendant has invoked the inherent powers of the Court under Section 151 of the

Code of Civil Procedure for appropriate orders in the interests of justice. To support

the submission that in such situation the inherent powers under Section 151 of the

Code of Civil Procedure can be exercised, the learned Advocate for the respondent

has relied on the judgment given in the case of K.K. Velusamy V/s. N. Palanisamy

reported in 2011 AIR SCW 2296.

It is well settled that the Court can exercise inherent powers under Section

151 of the Code of Civil Procedure where it is felt necessary to do so, however, there

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is rider that the inherent powers are required to be exercised with utmost care and

circumspection and when the bonafides of the person invoking the inherent powers

under Section 151 of the Code of Civil Procedure cannot be doubted. In the present

case, the defendant is seeking to invoke the inherent powers of the Court under

Section 151 of the Code of Civil Procedure under the mis-belief that the vendor of the

plaintiff who is cited as a witness by the plaintiff, if is examined after the

cross-examination of plaintiff, then the vendor will not state truth and will come with

evidence to fill up the lacunae left by the plaintiff in his evidence and brought on the

record in cross-examination of the plaintiff. The vendor of the plaintiff has nothing to

do with the lis between the plaintiff and the defendant. The defendant will get an

opportunity to cross-examine the vendor of plaintiff. If at all the vendor of plaintiff

does not state truth, the defendant can bring out the truth by cross-examining him.

Apart from this, I find that the impugned order is cryptic and without

application of mind. The learned trial Judge has not recorded any reason for

directing that the affidavit in lieu of examination-in-chief of Sharad Balkrushna Pawar

should be filed before cross-examination of plaintiff. The failure on the part of the

learned trial Judge to record the reasons for issuing directions which has the effect of

dictating the terms on the plaintiff to proceed with his case, make the impugned

order unsustainable.

Learned Advocate for the petitioner has pointed out that the application

under Section 151 of the Code of Civil Procedure is filed by the defendant after

seeking 56 adjournments to cross-examine the plaintiff.

Shri Khapre, learned Advocate for the defendant submits that it is not clear

whether all the 56 adjournments are sought by the defendant. However, fact

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remains that the application is filed after the matter was adjourned for 56 times and

this fact shows that there are no bonafides on the part of the defendant in moving the

application. Considering the proposition laid down in paragraph No.10(f) of the

judgment given in the case of K.K. Velusamy V/s. N. Palanisamy (cited supra) the trial

Court should not have exercised the inherent powers under Section 151 of the Code

of Civil Procedure.

For the above reasons, I find that the impugned order is unsustainable.

Hence, the following order:

(i)

The impugned order is set aside.

(ii) The application filed by the respondent - defendant under Section 151 of the

Code of Civil Procedure is rejected.

    (iii)          Rule made absolute in the above terms.
                


    (iv)           The defendant shall pay costs of Rs.5,000/- (Rs. Five Thousand Only) to the
             

plaintiff and produce the receipt on the record of the trial Court within one month.

If the amount of costs is not paid within time, the trial Court shall consider it

to be non-compliance of order passed by this Court.

JUDGE

Tambaskar.