Jammu & Kashmir High Court

Bansi Lal vs Dhani Ram on 26 August, 2021

                                                                       Serial No. 10




        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                                         OW104 No. 100/2013
                                                            IA No. 107/2013


Bansi Lal                                                       ...Petitioner(s)


                     Through:- Mr. Narinder K. Attri, Advocate.

                            v/s

Dhani Ram                                                       ...Respondent(s)

                      Through:- Mr. Bari Abdullah, Advocate.



Coram:        HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                        ORDER

1. The supervisory jurisdiction of his Court is being invoked under

Section 227 of the Constitution by the petitioner for setting aside the order

dated 04.09.2013 (for brevity „impugned order‟) passed by the Court of

learned Sub Judge, Ramban (for brevity „trial Court).

Brief facts:-

2. (i) A Suit for declaration is filed by the petitioner herein, against

defendant/respondent herein on 01.08.2007.

(ii) The issues are framed in the suit on 14.03.2008, directing the plaintiff

to lead the evidence. The plaintiff produced and examined two witnesses till

22.11.2011, on which date his evidence was closed. Thereafter, defendant

besides appearing himself as his own witness examined three witnesses and

his evidence was closed on 01.11.2012 posting the case for final arguments.

(iii) An application is filed by the plaintiff/petitioner on 22.05.2013,

seeking permission of the Court for producing two listed witnesses.

(iv) Another application is filed by the plaintiff/petitioner herein on

16.07.2013 seeking permission of the Court for his appearance as his own

witness invoking the provision of Order 18 Rule 3-A read with Section 151

CPC.

(v) Defendant/respondent herein opposes the said applications where

after, upon consideration, the Trial Court in terms of the impugned order

dismisses both the applications.

3. Heard learned counsel for the parties and perused the record.

4. Learned counsel for the plaintiff/petitioner herein while making his

submissions in line with the contentions raised and grounds urged in the

petition, would contend that the trial Court grossly erred while dismissing

the applications in question, as in terms of the impugned order, the trial

Court has declined the plaintiff/petitioner herein, to either appear as his own

witness after the closure of the evidence of the defendant, as also to adduce

two other listed witnesses.

5. According to the learned counsel, impugned order has resulted into

miscarriage of justice and in the event, the applications would have been

allowed by the trial Court, no prejudice would have been caused to the

defendant/respondent herein.

6. According to the learned counsel, the provisions of Order 18 Rule 3-A

have been held to be as directory and not mandatory.

7. Per contra, learned counsel for the defendant/respondent would contend

that the applications filed by the plaintiff/petitioner herein, before the trial

Court did not detail out any reason much less cogent or credible warranting

indulgence of the trial Court.

8. According to the learned counsel, the order impugned passed by the trial

Court is valid and legal, having regard to the facts and circumstances of the

case.

9. Learned counsel would pray for dismissal of the petition on the ground

that the supervisory jurisdiction in the matter could not be invoked by the

petitioner in view of the law laid down the Hon‟ble Apex Court.

10. Before adverting to the rival contentions, it would be appropriate and

relevant to refer to Order 18 Rule 3-A CPC. The provisions of Order 18 Rule

3-A consists of two parts. The first part requires that the party who wishes to

appear as a witness to enter the witness box before other witnesses have

been examined on his behalf. This part is mandatory and obligates the party

to act, accordingly.

11. The second part of the rule confers discretion on the Court to allow

deviation of the general rule laid down in the first part by granting

permission to a party to be examined at a later stage for reasons to be

recorded. The said part manifestly conferring power on the Court is

directory and permissive.

12. Keeping in view the aforesaid provisions of Order 18 rule 3-A sin quo

non for seeking permission of the Court by a party to appear as his/her

witness at a later stage requires the party to seek leave of the Court at the

initial stage and not at a later stage when either his/her evidence/witnesses

are produced and witness/evidence of the other side have been also

produced/adduced.

13. The expression „later stage‟ has been interpreted by this Court in case

titled as "Ali Mohd. Khandy and another Vs. Stage of J and K and others",

2009 (3) JKJ 453 (HC), observing that the expression „later stage‟ of the

evidence has been held to include three stages i.e. firstly, up to the closure

stage of the plaintiff; secondly, when the plaintiff has opted to produce the

evidence on certain issues after the production of the evidence by the

defendant then up to that stage the plaintiff produces evidence and thirdly,

when the plaintiff has produced the witnesses and defendant has also

produced the witnesses, then finally when the plaintiff in rebuttal has

produced the witness generally on the whole case, upon the closure of said

evidence.

It is further observed and held in the said judgment (supra) that

when the evidence in rebuttal has been finally closed, then there is no scope

for the plaintiff to seek permission for being examined as his own witness.

Later stage as appear in Rule 3-A of order 18 has been held not to include

any stage after the case is posted for final arguments.

14. Perusal of the record of the case tends to show that the evidence of the

plaintiff was closed on 22.11.2011 where after the defendant led his

evidence and his evidence was closed on 01.11.2012. After the closure of

the evidence of the defendant, the case has been set for final arguments by

the trial Court. Ever since, the closure of evidence of the defendant on

01.11.2012 till 22.05.2013 and 16.07.2013, the plaintiff /petitioner herein

has not made any attempt admittedly to either seek production of his listed

witnesses or else to appear himself as his own witness.

No reason much less credible or cogent is detailed out in the applications

except that on the date, the evidence of the plaintiff was closed, the counsel

for the plaintiff was not available and that the counsel had to appear in a

competitive examination.

15. Now as to whether the supervisory jurisdiction of this Court can be

invoked by the petitioner in the facts and circumstances of the case, a

reference to the law on the subject laid down by the Apex Court in case

titled as "Shalini Shyam Shetty and another Vs. Rajinder Shankar Patil"

reported in 2010(8) SCC 3291, needs to be referred to wherein besides other

principles, following has been observed:-

62.....(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) xxxxx

(e) xxxxx

(f) xxxxx

(g) xxxxx

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) xxxxx

(j) xxxxx

(k) xxxxx

(l) xxxxx

(m) xxxxx

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality".

16. Having regard to what has been observed, considered and analyzed

herein above, the petition is grossly misconceived and is accordingly,

dismissed. The impugned order does not call for any interference.