Jga Fashion Private Limited vs Krishan Kumar Khanna & Others
2011 Latest Caselaw 1346 Del

23
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                    +     CS(OS)No.66/2010

                            Date of Decision : 8th March, 2011
%

      JGA FASHION PRIVATE LIMITED       ..... Plaintiff
                     Through : Mr. Shyam Moorjhani and
                               Mr. Kshitij Mittal, Advs.
                versus

      KRISHAN KUMAR KHANNA & OTHERS ..... Defendants
                   Through : Mr. Arun Khosla with
                             Ms. Shreeanka Kakkar, Adv.

CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may             YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?            YES

3.      Whether the judgment should be                    YES
        reported in the Digest?


J.R. MIDHA, J. (Oral)

Review Petition No.79/2011

1. The plaintiff is seeking review of the order dated 4th

February, 2011 whereby this court has issued the notice to the

Post Master, Post Office, Tis Hazari Court, Delhi to produce the

relevant records with respect to the postal receipts filed by the

plaintiff.

2. Learned counsel for the plaintiff submits that summoning

the Post Master amounts to commencing inquiry under Section

340 of the Code of Criminal Procedure which shall cause

serious prejudice to the plaintiff.

3. The notice to the Post Master has been issued by this

court on 4th February, 2011 in order to find out the truth in

exercise of the power under Section 165 of the Indian

Evidence Act which is reproduced hereunder:-

"SECTION 165. JUDGE'S POWER TO PUT QUESTIONS OR ORDER PRODUCTION -

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing;

and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross- examine any witness upon any answer given in reply to any such question:

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:

Provided also that this Section shall not authorize any Judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted."

4. This Section provides plenary powers to the Judge to put

any question to any witness or party; in any form, at any time,

about any fact relevant or irrelevant. Section 165 is intended to

arm the Judge with the most extensive power possible for the

purpose of getting at the truth. The effect of this section is that

in order to get to the bottom of the matter before it, the Court

will be able to look at and inquire into every fact whatever and

thus possibly acquire valuable indicative evidence which may

lead to other evidence strictly relevant and admissible. The

Court is not, however, permitted to found its judgment on any

but relevant statements.

5. Mr. Edmund Burke arguing in Warren Hastings Trial said

that it is the duty of the Judge to receive every offer of

evidence, apparently material, suggested to him, though the

parties themselves through negligence, ignorance, or corrupt

collusion, could not bring it forward. He has a duty of his own,

independent of them, and that duty is to investigate the truth.

If no prosecutor appears, the Court is obliged to examine and

cross examine every witness who presents himself; and the

Judge is to see it done effectively, and to act his own part in it.

6. In Bartly vs. State, 55 Nebr 294 : 75 N.W.832

Harrison, C.J., said:

"It is undoubtedly necessary that the Judge who presided should acquire as full a knowledge of the facts and circumstances of the case on trial as possible, in order that he may instruct the jury, and correctly, to the extent his duty demands, shape the determination of the litigated matters, that Justice may not miscarry, but may prevail; and doubtless, it is allowable at times, and under some circumstances, for the presiding Judge to interrogate a witness".

7. The object of Section 165 is, first to ascertain truth and

then, do justice on the basis of the truth. The Judge is not only

justified but required to elicit a fact, wherever the interest of

truth and justice would suffer, if he did not.

8. The framers of the Act, in the Report of the Select

Committee published on 1st July, 1871 along with the Bill settled

by them, observed as follows:-

"Passing over certain matters which are explained at length in the Bill and report, I come to two matters to which the Committee attach the greatest importance as having peculiar reference to the administration of justice in India. The first of these rules refers to the part taken by the judge in the examination of witnesses; the second, to the effect of the improper admission or rejection of evidence upon the proceedings in case of appeal.

That part of the law of evidence which relates to the manner in which witnesses are to be examined assumes the existence of a well-educated Bar, co-operating with the Judge and relieving him practically of every other duty than that of deciding questions which may arise between them. I need hardly say that this state of things does not exist in India, and that it would be a great mistake to legislate as if it did. In a great number of cases - probably the vast numerical majority - the Judge has to conduct the whole trial himself. In all cases, he has to represent the interests of the public much more distinctly then he does in England. In many cases, he has to get at the truth, or as near to it as he can by the aid of collateral inquiries, which may incidentally tend to something relevant; and it is most unlikely that he should ever wish to push an inquiry needlessly, or to go into matters not really connected with it. We have accordingly thought it right to arm Judges with a general power to ask any questions upon any facts, of any witnesses, at any

stage of the proceedings, irrespectively of the rules of evidence binding on the parties and their agents, and we have inserted in Bill a distinct declaration that it is the duty of the Judge, especially in criminal cases, not merely to listen to the evidence put before him but to inquire to the utmost into the truth of the matter."

9. The Judge contemplated by Section 165 is not a mere umpire

at a wit-combat between the lawyers for the parties whose only

duty is to enforce the rules of the game and declare at the end

of the combat who has won and who has lost. He is expected,

and indeed it is his duty, to explore all avenues open to him in

order to discover the truth.

10. The plaintiff has not yet filed the reply to the application

under Section 340 of the Code of Criminal Procedure. The

plaintiff has also not disclosed its defense to Section 340 of the

Code of Criminal Procedure in review application. The

contentions of the plaintiff with respect to Section 340 of the

Code of Criminal Procedure cannot, therefore, be considered at

this stage. The principles regarding the scope of Section 340 of

the Code of Criminal Procedure have been set out in the recent

judgment of this Court in the case of Sanjeev Kumar Mittal

Vs. The State, 174 (2010) DLT 214 and the contentions of

the plaintiff with respect to Section 340 of the Code of Criminal

Procedure shall be considered after the plaintiff files the reply

to the application and discloses its defence.

11. There is no merit in the application for review which is

hereby dismissed.

I.A.No.2656/201

1. Notice. Mr. Arun Khosla, Advocate, accepts notice.

2. The plaintiff is seeking waiver of the cost of `50,000/-

imposed vide order dated 4th February, 2011 for not filing reply

to I.A.No.5855-57/2010 and Crl.M.No.5782/2010 in time.

3. Learned counsel for the plaintiff submits that the notice of

the aforesaid applications was accepted by the counsel for the

plaintiff on 4th May, 2010 but the reply could not be filed within

two weeks as the suit was dismissed in default before the

expiry of two weeks on 18th May, 2010. The plaintiff filed

I.A.No.8358/2010 for restoration of the suit which was taken up

on 1st November, 2010 when the suit was restored subject to

the cost of `25,000/- and the pending applications were

directed to be listed on 29th November, 2010. On 29th

November, 2010, the plaintiff was directed to file reply only to

I.A.No.5855/2010 under Order VII Rule 11 of the Code of Civil

Procedure but there was no direction to file reply to the other

pending applications. It is submitted that the delay of nine

months from 4th May, 2010 are not attributable to the plaintiff

in as much as the suit was dismissed in default on 18th May,

2010 and was restored on 1st November, 2010.

4. In the facts and circumstances stated above, the

application is allowed, the cost of `50,000/- is waived and the

order dated 4th February, 2011 is modified to that extent.

CS(OS)No.66/2010

The learned counsel for the plaintiff has handed over 15

demand drafts totaling `24,40,050/- to learned counsel for the

defendants in Court today. The learned counsel for the

defendants has accepted the said amount without prejudice to

the rights and contentions of the defendants. The photocopy of

the demand draft is taken on record.

J.R. MIDHA, J MARCH 08, 2011 mk/aj