Tripura High Court
Sri Manik Kahar vs Smt. Malabika Singha on 24 January, 2024
Page 1 of 7
HIGH COURT OF TRIPURA
AGARTALA
CRP No.06 of 2024
Sri Manik Kahar
..........Petitioner(s)
Versus
Smt. Malabika Singha
......Respondent(s).
For Petitioner(s) : Mrs. S. Deb (Gupta), Advocate.
For Respondent(s) : None.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Order
24/01/2024
Heard Mrs. S. Deb (Gupta), learned counsel for the petitioner.
[2] At the stage when the judgment in Title Suit No.9 of 2021 has
been reserved, the plaintiff-petitioner sought to adduce witness, namely Sri
Pranay Ranjan Dey, scribe of the sale deed vide No.1-4406 dated 30.08.2018
through an application made under Order XVI Rule 1(2) read with Section
151 of the CPC on the plea that the plaintiff after the death of her husband on
29.05.2020 could not find out the said scribe, namely Sri Pranay Ranjan Dey
though his testimony is very much required, otherwise the plaintiff will be
highly prejudiced. The Title Suit No.9 of 2021 was preferred for declaration
of Title and recovery of possession and means profit by the plaintiff-
petitioner against the sole defendant/respondent herein. The cause of action
was raised upon the execution of the sale deed dated 30.08.2018 by the
defendant in favour of the plaintiff and again after the plaintiff sent the legal
notice to the defendant. The defendant was resisting the possession of the
suit land even after payment of consideration and execution of the sale deed.
[3] Mrs. S. Deb (Gupta), learned counsel for the petitioner submits
that conclusion of arguments does not prevent the Court to exercise its
inherent powers under Section 151 of the CPC if the ends of justice so
warrant in an appropriate case. In this regard, she placed reliance upon a
decision of the Apex Court in case of K.K. Velusamy Vs N. Palanisamy
reported in (2011) 11 SCC 275. It is further submitted that the suit has
proceeded ex parte and no written statement was filed by the defendant,
neither has she cross-examined the plaintiff-witnesses. The sale deed has
already been exhibited by the plaintiff and has been admitted without any
objection from the defendant. The pleadings of the plaintiff's case have not
been denied and, as such, remained non-traversed. The learned Court upon
hearing both the sides has observed that the evidence of the plaintiff was
closed on 09.06.2022 and thereafter on 27.06.2022 it was fixed for argument.
Thereafter, the petition under Section 151 of CPC, filed by the defendant,
was dismissed on 27.02.2023. Again the suit was fixed for hearing argument
and after hearing both sides at length on 09.10.2023 the suit was fixed for
delivery of judgment. On that day, the judgment could not be delivered and,
thereafter, on 18.10.2023 this petition was filed under Order XVI Rule 1(2)
read with Section 151 of CPC after conclusion of final arguments. The
learned Court was of the opinion that it is an attempt to fill up a lacunae in
the case and it should not be permissible and thus the petition was rejected.
[4] Mrs. S. Deb (Gupta), learned counsel for the petitioner, submits
that the plaintiff bears an apprehension that non examination of the scribe
would lead to miscarriage of justice as the claim of delivery of possession
would be denied to the plaintiff in the absence of the evidence of the scribe who
transcribed the sale deed after it was read over to the plaintiff-petitioner and
defendant-OP both by the sale deed writer,
Sri Pranay Ranjan Dey. As such, the production of the plaintiff's witness, Sri
Pranay Ranjan Dey, would only assist the learned Trial Court to come to a just
decision as to the Title and issue of delivery of possession in favour of the
plaintiff based on the registered sale deed dated 30.08.2018.
[5] Mrs. S. Deb (Gupta), learned counsel for the petitioner, has also
placed reliance upon a recent decision of the learned Apex Court in the case
of Damodhar Narayan Sawale (D) Vs Tejrao Bajirao Mhaske rendered in
Civil Appeal No.930 of 2023 dated 04.05.2023 and submitted that if the
execution of the document is accepted, requirement of extrinsic evidence
relating to the sale transaction covered by the sale deed under the Evidence
Act, 1872 may not be required.
[6] I have considered the submission of the learned counsel for the
petitioner and taken note of the relevant pleadings placed from the record. I
have also gone through the impugned order and perused the judgments relied
upon by the learned counsel for the petitioner. The Apex Court in the case of
K.K. Velusamy Vs N. Palanisamy (supra) has held that in appropriate cases the
Court can exercise its discretion to permit reopening of evidence and/or
recalling of witnesses for further examination/ cross-examination after the
evidence lead by the parties is concluded and arguments are commenced or
even when arguments have concluded in exercise of its inherent powers
under Section 151 of the CPC and in view of the deletion of Order XVIII Rule
17-A. Earlier the Code had a specific provision in Order XVIII Rule 17-A
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 01.7.2002. The deletion of the said provision does not mean that
no evidence can be received at all, after a party closes his evidence. 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. However, the
Apex Court observed that the inherent powers of the Court can be invoked in
such circumstances when it is meant to achieve the ends of justice (subject to
the need to comply with the law) and such power does not end when
arguments are heard and judgment is reserved. The convention that no
application should be entertained once the trial or hearing is concluded and
the case is reserved for judgment is a sound rule, but not a straitjacket
formula which can have exceptions in exceptional or extra-ordinary
circumstances, to meet the ends of justice and to prevent the abuse of process
of Court, subject to the limitation recognized with reference to exercise of
power under Section 151 of the Code. However, the Apex Court also added a
word of caution by observing that Section 151 or Order XVIII Rule 17 of the
Code is not intended to be used routinely, merely for the asking otherwise it
would defeat the very purpose of various amendments to the Code to
expedite trials. But where the application is found to be bona fide 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.
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. The amended Code expects the Courts to constantly endeavour
to follow such a time schedule regarding recording of evidence in a
continuous manner followed by arguments, without any gap. If that is done,
applications for adjournments, re-opening, recalling, or interim measures
could be avoided.
[7] Considered the issue at hand in the light of the provisions of the
Code under Section 151 and Order XVI Rule 1(2) and in the light of the
salutary principles laid down by the Apex Court in the case of K.K.
Velusamy Vs N. Palanisamy (Supra) relied upon by the petitioner in the
context of the present facts of the case. It appears that the Title Suit
No.9/2021 was filed after the death of the husband of the plaintiff on
29.05.2020. The registered sale deed in question was executed on 30.08.2018
said to be in the handwriting of the writer, Sri Pranay Ranjan Dey. The suit
proceeded ex parte and no written statement was filed by the defendant. The
defendant has not even cross-examined the plaintiff neither objected to the
admission of the registered sale deed. This evidence was closed on
09.06.2022 and thereafter since 27.06.2022 the case was fixed for argument
and after hearing arguments at length it was fixed for delivery of judgment
on 09.10.2023 and further deferred to 18.10.2023 where after this petition for
adducing evidence was filed. As such, on grounds of relevancy of the said
witness and on the explanation for her inability to produce the said witness,
the petitioner has failed to satisfy this Court as to the necessity of production
of this witness as a scribe of the registered sale deed at the stage of
pronouncement of judgment. The learned Trial Court has upon consideration
of all the relevant facts found it to be an attempt on the part of the plaintiff to
fill up the lacunae in her case. The view of the learned Trial Court cannot be
said to be a jurisdictional error which this Court in exercise of powers under
Article 227 of the Constitution of India is required to interfere.
[8] As such, for the reasons recorded herein above this Court does
not find any scope for interference in the matter. Accordingly, the instant
petition is dismissed. Pending application(s), if any, shall stand disposed of.
(APARESH KUMAR SINGH), CJ
Munna S MUNNA SAHA
Date: 2024.01.30 11:28:38 +05'30'
