WPMS/2497/2022
2022 Latest Caselaw 3322 UK

 IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL
         ON THE 14THDAY OF OCTOBER, 2022
                        BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI

      WRIT PETITION (M/S) No. 2497 of 2022

BETWEEN:
Smt. Shalu Rani & Others                    ..........Petitioners

AND:

Murti Ramchandra Ji Maharaj and Mahadev Ji Maharaj
And Others                                   ...Respondents

          Mr. Neeraj Garg, Advocate, for the petitioners.
          Mr. Siddhartha Jain, Advocate, for the
          plaintiffs/respondents no. 1 and 2.



                      JUDGMENT

Heard learned Counsel for the parties.

2. This is tenant's petition under Article 227 of the Constitution. A suit for rent, ejectment and recovery of mesne profits was filed by respondents no. 1 and 2 against petitioners in the year 2005 before Judge, Small Cause Court, Dehradun. The said suit is still pending and numbered as SCC Suit No. 19 of 2005.

3. Petitioners are aggrieved by the order dated 25.4.2018, passed by Civil Judge (Sr. Div.), Dehradun, whereby their opportunity to cross-examine the Plaintiff Witness (PW1) was closed. Petitioners' revision, filed under Section 25 of the Provincial Small Cause Courts Act, 1887, is also dismissed by 4th Additional District Judge, Dehradun vide judgment and order dated

19.9.2022. Feeling aggrieved by the judgment and order passed by Revisional Court as well as Trial Court, petitioners have approached this Court.

4. Perusal of the order passed by Revisional Court reveals that petitioners had sought adjournment on the date fixed i.e. 25.4.2018. However, their request was turned down by Trial Court by holding that on the earlier date i.e. 5.4.2018, petitioners' adjournment application was allowed with the condition that they will cross-examine the Plaintiff Witness on the next date fixed. By the same order dated 25.4.2018, petitioners' opportunity to cross-examine the Plaintiff Witness was closed. Revisional Court has passed a detailed order in which it has been held that petitioners sought adjournment on three consecutive dates, therefore, Trial Court was justified in rejecting petitioners' request for adjournment. Thus, Revisional Court declined to interfere with the order passed by Trial Court closing petitioners' opportunity to cross-examine the Plaintiff Witness.

5. Hon'ble Supreme Court in the case of K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, has held that the Court has inherent discretionary power to recall any witness and reopen the evidence. Relevant paragraphs of the said judgment are extracted below:

"11. There is no specific provision in the Code enabling the parties to reopen 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 to limit or otherwise affect the inherent powers of the court 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

reopening 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 reopen 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.

12. The respondent contended that Section 151 cannot be used for reopening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that Section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of Section 151 has been explained by this Court in several decisions [see Padam Sen v State of UP, Manohar Lal Chopra v. Seth Hiralal, Arjun Singh v. Mohindra Kumar, Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava , Nain Singh v. Koonwarjee, Newabganj Sugar Mills Co. Ltd. v. Union of India , Jaipur Mineral Development Syndicate v. CIT National Institute of Mental Health & Neuro Sciences v. C. Parameshwara and Vinod Seth v. Devinder Bajaj. We may summarise them as follows:

(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is "right" and undo what is "wrong", that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such

power is coextensive with the need to exercise such power on the facts and circumstances.

(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.

(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.

13. The Code earlier had a specific provision in Order 18 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 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 deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence."

6. It is well settled that Courts are meant to do substantial justice between the parties and that rules of procedure are handmaid of justice, which are meant to facilitate the course of justice and not to scuttle the same. Hon'ble Supreme Court in the case of Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, held as under:

"16. Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it."

7. Although this Court does not find any infirmity or illegality in the impugned order passed by the Trial Court, as affirmed by the Revisional Court, however, with a view to ensure that the lis is decided not on the technicalities but on merits, this Court thinks that ends

of justice would be met if one last opportunity is given to petitioners to cross-examine the Plaintiff Witness.

8. Accordingly, this writ petition is disposed of granting one more opportunity to petitioners to cross- examine the Plaintiff Witness. This, however, will be subject to payment of cost of rupees ten thousand, to be deposited before the Trial Court by 17.10.2022. Out of the amount of cost as imposed by this Court, 50 per cent shall go to District Legal Services Authority, Dehradun and remaining 50 per cent will go to respondents no. 1 and 2. Impugned orders are modified to the extent indicated above.

9. Having regard to the facts of the case, it is provided that petitioners shall cross-examine the Plaintiff Witness (PW1) on 19.10.2022. Petitioners shall not seek any adjournment on the said date. Mr. Siddhartha Jain, learned Counsel appearing for the respondents no. 1 and 2, makes a statement that his clients will ensure that the witness, who needs to be cross-examined by petitioners, remains present on the said date before Trial Court.

10. Since the suit was filed in 2005, therefore, learned Trial Court is requested to make endeavour to decide it as early as possible, preferably within six months from today.

(MANOJ KUMAR TIWARI, J.) Pr