Rajasthan High Court - Jodhpur

Rajesh Kumar Mulani vs Additional Sr. Civil Judge, No. 2 on 9 November, 2021

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16343/2018

Rajesh Kumar Mulani S/o Kishan Chand Mulani, Aged About 45 Years, R/o At Present Adarsh Colony, Behind Awari Mata Temple, Nimbahera, District Chittorgarh.

----Petitioner Versus

1. Additional Sr. Civil Judge, No. 2, Nimbahera, District Chittorgarh.

2. Mohd. Umar Khan S/o Ahmed Khan,, Aged About 43 Years, Resident Of Kangi Mohalla, Nimbahera, District Chittorgarh.

                                                                  ----Respondents


For Petitioner(s)          :     Mr. Suresh Shrimali with
                                 Mr. Rishabh Shrimali
For Respondent(s)          :     Mr. S.L. Jain

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

09/11/2021

1. In wake of second surge in the COVID-19 cases, abundant

caution is being maintained, while hearing the matters in Court,

for the safety of all concerned

2. This writ petition has been preferred claiming the following

reliefs:

"It is, therefore, most respectfully prayed on behalf of petitioner that the writ petition may kindly be allowed with costs throughout and the impugned order dated 15.09.2018 (Ann.8) passed by the Additional Sr. Civil Judge No.2, Nimbahera, District Chittorgarh in Civil Suit No.32/2018 (35/2011) may kindly be quashed and set aside and the application filed by the

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petitioner under Order 8 Rule 1(A), 3(A) read with Section 151 CPC dated 10.01.2018 may kindly be ordered to be allowed."

3. As the pleaded facts would reveal, the plaintiff/non-petitioner

had filed a suit for ejectment of the shop and for recovery of a

sum of Rs.15,643/- against the defendant/petitioner. The

defendant petitioner took a plea that he is not the tenant of the

plaintiff/non-petitioner, and thus, there is no relationship of

landlord and tenant between the plaintiff/non-petitioner and the

defendant/petitioner, which could justify continuance of the suit.

Thereafter, the defendant/petitioner filed an application under

Order 8 Rules 1(A), 3(A) read with Section 151 CPC before the

learned court below on 09.10.2017 seeking production of the

statement dated 11.09.2017 of the plaintiff/non-petitioner

regarding admission made in another suit.

4. Learned counsel for the petitioner submits that the

aforementioned statement dated 11.09.2017 was not in existence

earlier, and therefore, the defendant/petitioner was well justified

in seeking to bring the same on record.

5. Learned counsel for the petitioner relied upon the precedent

law laid down by the Hon'ble Supreme Court in Basant Singh Vs.

Janki Singh & Ors., reported in AIR 1967 SC 341 (V 54 C

63), particularly para 5 thereof, which reads as under:

"The High Court also observed that an admission in a pleading can be used only for the purpose of the suit in which the pleading was filed. The observations of Beaumont, C.J. in Ramabai Shriniwas v. Bombay Government AIR 1941 Bom 144, lend some countenance to this view. But

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those observations were commented upon and explained by the Bombay High Court in D. S.

Mohite v. S. I Mohite AIR 1960 Bom 153. An admission by a party in a plaint signed and verified by him in a prior suit is an admission within the meaning of S. 17 of the Indian Evidence Act, 1872 and may be proved against him in other litigations. The High Court also relied on the English Law of evidence. In Phipson on Evidence, 10th Edn., Art.741, the English law is thus summarized:

"Pleadings, although admissible in other actions, to show the institution of the suit and the nature of the case put forward, are regarded merely as the suggestion of counsel, and are not receivable against a party as admissions, unless sworn, signed, or otherwise adopted by the party himself." Thus, even under the English law, a statement in a pleading sworn, signed or otherwise adopted by a party is admissible against him in other actions. In Marianski v. Cairns (1852) 1 Macq 212, the House of Lords decided that an admission in a pleading signed by a party was evidence against him in another suit not only with regard to a different subject-matter but also against a different opponent. Moreover, we are not concerned with the technicalities of the English law. Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.

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6. Learned counsel for the petitioner also relied on the

precedent law laid down by the Hon'ble Supreme Court in

Mritunjoy Sett (D) by LR's Vs. Jadunath Basak (D) by LR's,

reported in 2011 DNJ (SC) 456, relevant portion of which reads

as under:

"16. In the light of Respondent's own admission, it leaves no doubt in our mind that it will hold good as long as it was not withdrawn or clarified by him. It is too well settled that an admission made in a court of law is a valid and relevant piece of evidence to be used in other legal proceedings. Since an admission originates (either orally or in written form) from the person against whom it is sought to be produced, it is the best possible form of evidence. In the factual context of this case, it may also be noted here that the 'rent receipts' issued by Smt. Kamala Sett, the predecessor-in-interest of the Appellant herein, being the documentary evidence adduced by the Respondent to prove his contention that the tenancy was as per the Bengali Calendar, was never substantiated by the witness' testimony of the abovenamed Smt. Sett in the course of hearings."

7. Learned counsel for the petitioner further relied upon the

judgment rendered in K.K. Velusamy Vs. N. Palanisamy,

reported in 2011 AIR SCW 2296, relevant portion of which

reads as under:

"9. There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed

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to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.

11. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. 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

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deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence.

12. 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.

15. The appellant - defendant has taken a consistent stand in his reply notice, written statement and evidence that the agreement of sale was executed to secure a loan of Rs.150,000, as the respondent insisted upon execution and registration of such agreement. If after the completion of recording of evidence, PW1 and PW2 had admitted during conversations that the amount paid was not advance towards sale price, but only a loan and the agreement of sale was obtained to secure the loan, that would be material evidence which came into existence subsequent to the recording of the depositions, having a bearing on the decision and will also clarify the evidence

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already led on the issues. According to the appellant, the said evidence came into existence only on 27.10.2008 and 31.10.2008, and he prepared the applications and filed them at the earliest, that is on 11.11.2008. As defendant could not have produced this material earlier and if the said evidence, if found valid and admissible, would assist the court to consider the evidence in the correct perspective or to render justice, it was a fit case for exercising the discretion under section 151 of the Code. The courts below have not applied their minds to the question whether such evidence will be relevant and whether the ends of justice require permission to let in such evidence. Therefore the order calls for interference.

18. In this case, we are satisfied that in the interests of justice and to prevent abuse of the process of court, the trial court ought to have considered whether it was necessary to re-open the evidence and if so, in what manner and to what extent further evidence should be permitted in exercise of its power under section 151 of the Code. The court ought to have also considered whether it should straightway recall PW1 and PW2 and permit the appellant to confront the said recorded evidence to the said witnesses or whether it should first receive such evidence by requiring its proof of its authenticity and only then permit it to be confronted to the witnesses (PW1 and PW2)."

8. On the other hand, learned counsel for the respondent

submits that the suit is at the fag end, and therefore, any

indulgence, if granted by this Court, will prolong the adjudication

and create unnecessary delay.

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Learned counsel relied upon the judgment rendered by this

Hon'ble Court in Satish Gaggar Vs. Satya Prakash & Ors.,

reported in 2016(1) DNJ (Raj.) 397, relevant portion of which

reads as under:

"8. Mr.Arora has also placed reliance on a decision of Supreme Court in Sameer Suresh Gupta v. Rahul Kumar Agarwal, (2013) 9 SCC 374 wherein parameters for exercise of power of this Court under Article 227 are emphasized and principles laid down in this behalf by earlier decision are reiterated. Reiterating the principles laid down in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, the Court held,-

"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227.The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at 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 the 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) The parameters of interference by High Courts in exercise of their power of superintendence have been

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repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, `within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(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) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgement by a constitutional amendment is also very doubtful.

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(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article

227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to High Court.

(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.

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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."

9. After hearing learned counsel for the parties as well as

perusing the record of the case, alongwith the precedent laws

cited at the Bar, this Court finds that the statement of the plaintiff/

non-petitioner, which is to be brought on record, was itself

rendered on 11.09.2017, and thus, could not have been brought

on record prior thereto. Thus, the reasoning given by the learned

court below is not justified. The relevance of the statement can

further be examined by the learned court below.

10. In view of the above, the impugned order dated 15.09.2018

passed by the learned court below is quashed and set aside, only

to the extent of the present application, and accordingly, the

production of the aforementioned statement of the plaintiff/non-