Jammu & Kashmir High Court
Rano Devi And Ors. vs Ram Lal on 28 September, 2018
Equivalent citations: AIR 2019 (NOC) 152 (J & K.)
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OWP No. 1603/2018 & IA No.1/2018 c/w Caveat No.3410/2018
Date of Order: 28.09.2018
Rano Devi and ors Vs. Ram Lal
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearance:
For the petitioner (s) : Mr. P. S. Pawar, Advocate.
For the respondent(s) : Mr. J.P.Gandhi, Advocate.
i) Whether approved for reporting in
Law journals etc. : Yes/No
ii) Whether approved for publication
in press : Yes/No
Caveat No.3410/2018
Caveat stands discharged.
OWP No.1603/2018
1. This petition under Article 227 of the Constitution of India read with Section 104 of the Constitution of Jammu and Kashmir has been filed by the petitioners thereby challenging four different orders of same date i.e. 04.08.2018 passed by the Court of Munsiff Akhnoor in 1) an application of the petitionerss under order XVIII Rule 17 CPC in a suit for declaration and injunction titled "Ram Lal vs Rano Devi and others"; 2) an application for producing additional evidence and also to prove Will in terms of Section 71 of Evidence Act; 3) an application u/s 45, 46 and 47 of the Evidence Act for the signature identification of witness Suraj Ram; and 4) an application for recalling of the order dated 21.04.2018/27.04.2018 passed by the trial court with further directions to recall the said witness.
2. In the petition, it has been stated that by virtue of orders impugned passed by the trial Court a grave miscarriage of justice has been occasioned. The trial Court has not only omitted to invoke the jurisdiction vested in it but OWP No.1603/2018 Page 1 of 18 also has committed a grave error of law. So the orders impugned passed by the trial Court dated 04.08.2018 deserve to be set aside/quashed. That admittedly the evidence of the petitioners was closed by the trial Court and this Court vide its order dated 12.03.2018 had refrained from interfering into the legality/illegality of the said order. The said order of this Court had no bearing over an application moved by petitioners under Order XVIII Rule 17 CPC as it was in different provision of law to that of what this Court had already dealt with. But the trial court had dismissed the said application of the petitioner by misinterpreting the order of this Court dated 12.03.2018 vis-a-vis the application of the petitioners. Not only this, it has even avoided applying its discretion judiciously in recalling the witness. Apparently the order impugned passed under Order XVIII Rule 17 CPC is not a judicious order but has been passed on the basis of wrong interpretation of the orders of this Court, provision contemplated under Order XVIII Rule 17 CPC and the facts and circumstances of the case. Similarly, the application for producing additional evidence by the petitioners before the trial court is a vested right of the petitioners in the trial Court even upto the appellate Court in terms of Order 41 Rule 27 CPC. Moreover Section 71 of the Evidence Act provides that if the attesting witness denies the execution of the document then its execution may be proved by other evidence, this has also been dismissed without any judicious mind merely on the ground that vide order dated 12.03.2018 this Court has dismissed the petition of the petitioners for producing evidence and has made the order dated 25.08.2017 as binding on the court. It is also said in the order impugned that Sh. V. K. Sharma, Advocate who is scriber of the Will Deed and also an identifier of the testator at the time of registration of the will deed had been the counsel of the defendants could have been brought to the witness box by the defendants themselves while he was their counsel and also Sh. Ramesh Kumar, the scriber of the will deed. But the fact remains that the OWP No.1603/2018 Page 2 of 18 said advocate Sh. V.K.Sharma if was a scriber and identifier to the said Will could not had been a counsel for the either side to the litigation but still he chose to be the counsel for the defendants and for the reasons unknown to the defendants neither he advised the defendants to place on record the original Will nor did become the witness in the trial and in the mid way of the trial left it. So for his negligence intentionally or unintentionally, the petitioners cannot be deprived for justice. Moreover the delay in the trial is not because of the conduct of the petitioners/defendants but because of the reason that till 2010 the onus was on respondent/plaintiff to disprove the Will of the said Late Shanti Devi and w.e.f. 2005-2010 the delay in producing the evidence was caused by the respondent/plaintiff. In 2012 because of the death of predecessor in interest of petitioner Nos.1 to 6 namely Raj Pal the application for substituting his legal representatives remained undecided till 2013 and the earlier petition before this court took four years i.e. w.e.f 2013 to 2017. So no delay has been caused by the petitioners/defendants in the disposal of the case but the trail court on the ground of old case and delay by the petitioners, has dismissed the application. So the order impugned is bad in the eyes of law thus deserve to be set aside/quashed.
3. It is further stated in the petition that the petitioners have moved an application for conducting signature verification of the witness namely Suraj Ram, who denied to be attesting witness in the said Will nonetheless he has signed the said Will as attesting witness and there is specific provision u/s 45 to 47 of the Evidence Act to meet such an eventualities, not only this the petitioners even produced four documents carrying the signatures of said Suraj Ram at different occasions which on comparison exfacie reveals the signature of one and the same person. But the Court below even dismissed this application also on the ground that it will not serve any purpose, if it is allowed.
OWP No.1603/2018 Page 3 of 184. It is stated that undoubtedly and admittedly the Will deed is executed by Late Shanti Devi and she got it registered from Sub-Registrar, Akhnoor. The only dispute of the respondent/plaintiff in the said Will deed is that the testator in the Will deed was not competent to execute the said Will deed as stated in his statement before the trial Court in the bottom line of his statement (Muzar ney yeh baat thik tahrir karwai thi kay Shanti Devi ko wasiyat ba-haq Raj Pal kar ney ka koi had na tha). But simultaneously, in his statement, the defendant/respondent has stated that said Shanti Devi was an estate holder. If it is so then execution/registration of the said Will deed by Late Shanti Devi in the name of propounders need not be proved. If only competency of the Shanti Devi to execute the Will deed is questioned then the revenue record and the own statement of respondent/plaintiff is sufficient to prove her competency to execute the Will deed. In the petition, it has been stated that the petitioners are aggrieved against the order dated 04.08.2018, passed by the court of Learned Munsiff Akhnoor, in a suit for declaration and injunction titled "Ram Lal vs Rano Devi & Ors." whereby the trial court without jurisdiction and also in glare abuse of process of law, has passed the orders impugned thereby rejecting the application of the petitioner under order XVIII rule 17 CPC, an application for producing additional evidence and also to prove the Will in terms of Section 71 of Evidence Act, an application u/s 45, 46 and 47 of the Evidence Act for the signature identification of witness Suraj ram and the application for the recalling of the order dated 21.04.2018 and 27.04.2018 passed by the trial court. It is further stated that the petitioners are challenging all these orders in the present petition as have been passed on the same date in the above referred suit by the trial court.
5. I have heard rival contentions. I have also gone through law on the subject. During the course of argument, counsel for petitioners has reiterated the grounds taken in petition; counsel for the petitioners has OWP No.1603/2018 Page 4 of 18 stated that the orders impugned passed by the trial court deserve to be set aside as the petitioners have challenged the orders under different provisions of CPC, so the trial Court was wrong in deciding the petitions against the petitioners herein. That trial Court could have exercised jurisdiction vested to him under section 151 of C.P.C to do complete justice. That great miscarriage of justice would be caused, if his prayers are not allowed. Whereas the counsel for the respondent has argued that the orders of the Court below passed in all the petitions are correct and have been passed in compliance to the directions of this Court in the petitions bearing OW104 No.98/2014 dated 25.08.2017 and OW104 No.24/2018 decided on 12.03.2018. Now while filing the present petition, petitioners are trying to setting at naught, the previous orders passed by this court.
6. I have given my thoughtful consideration to whole aspects of the matter.
From the perusal of record annexed in the petition, it is evident that respondent/plaintiff filed a suit for declaration that WILL deed dated 21.9.1993 executed by one Shanti Devi in favour of predecessors of petitioners herein is null and void. Law is clear that in such suit, burden lies on propounder of WILL to prove that Will in question was executed by executant in a fit state of mind and was his/her last will. During course of trial petitioners/defendants herein filed four different applications.
7. Petitioners herein filed one application under Order XVIII Rule 17 CPC for recalling the witness, namely, Suraj Ram on the ground that in order to prove Will dated 21.09.1993 executed by the deceased Shanti Devi in favour of predecessor of the defendants Nos. 1 to 6 and defendant No.7. It was stated in the application that due to negligence of earlier counsel, who was also the scriber of the original Will deed, the original Will could not be placed on record and in absence of the original Will deed neither the original Will deed carrying the signatures of the witness could be OWP No.1603/2018 Page 5 of 18 shown to him nor he could be confronted with his signatures over the said Will deed. The said application was dismissed by the court below on 04.08.2018 after inviting the objections. It is apt to reproduce concluding para of the order dated 04.08.2018 as under:
".....The said discretion imposed upon the court under Order XVIII Rule 17 is a judicial discretion, if court thinks the recall of a witness is necessary, but in the present case there is no ground to recall the witness Suraj Ram merely to confront him with his signatures on the Will deed when the said Will deed has deliberately not been placed on record by the applicants at the relevant time and also considering that Hon'ble High Court vide its order dated 12.03.2018 has held that the order dated 25.08.2017 of Hon'ble High Court is binding upon the trial court to dispose of the case within six months and did not allow trial court to grant any further opportunity to defendants to produce more witnesses, therefore, the said application without any merits stands dismissed."
8. Similarly, another application filed by the petitioners for producing additional evidence, vis-à-vis Sh. V.K. Sharma, Advocate (scriber of impugned Will deed dated 21.09.1993 and also identifier of the testator), stamp vendor Sh. R. K. Sharma (Typist Munsiff Court Akhnoor). In this application, it was stated that the said V.K.Sharma, Advocate, was the scriber of the Will deed dated 21.09.1993 and Sh. R. K.Sharma has typed the Will. So learned counsel for the defendants was supposed to produce each and every witness connected with the impugned Will deed before the court below, but because of some reason the earlier counsel namely Sh.V.K.Sharma, Advocate who was a scriber as well as identifier of the testator could not be produced. The said application was also dismissed on 04.08.2018 by the court below. The concluding para of the said order reads as under:
"....Applicant cannot be allowed to approbate and reprobate at the same time. Since both these witnesses were in the power of the defendant and one of them was the counsel of defendants himself and OWP No.1603/2018 Page 6 of 18 other was witness produced before the court and defendants did not chose deliberately to examine any of them. At this stage defendants/applicants cannot be allowed to move this application to examine these witnesses as additional evidence even otherwise Hon'ble High Court has also deem it proper not to grant additional opportunities to the defendants as the file is very old one. Hence, the present application is completely misconceived and without any merits stand dismissed."
9. Another application was filed by the petitioners for conducting the signature identification test of witness namely Suraj Ram through Forensic Science Laboratory, Jammu. In the application, it has been stated that Suraj Ram is one of the attesting witnesses of the Will deed, challenged in the said suit, but in his statement recorded before the court said Suraj Ram has denied his signatures over the Will deed without perusing the original Will deed and in these facts and circumstances it is necessary rather indispensible to get the signature identification test from Forensic Science Laboratory as it will serve the cause of justice. The said application was also dismissed by the court below on 04.08.2018. The concluding para of the said order is reproduced as under:
"....I have perused application, objections and given my thoughtful consideration to the arguments advanced by the counsel for both the sides. Since the present application is without any provision of law and it is not understandable as to what purpose will it serve when the said witness categorically denied his signatures in the Will deed and even otherwise if this application be allowed it will not have any effect on the decision of the case as the said witness has categorically denied the signatures to be his own, at the most if applicant finds it appropriate he may move a criminal court for the same. Hence the present application without any provision of law and without any merit stand dismissed."
10. Similarly, one more application was filed by the petitioners for recalling of the order dated 21.04.2018 and 27.04.2018 whereby the above titled suit has been kept for arguments. This application was also dismissed on OWP No.1603/2018 Page 7 of 18 04.08.2018 by the court below. The concluding para of the said order is reproduced as under:
"...I have perused application, objections as well as given my thoughtful consideration to the arguments advanced by the counsel for both the sides the only ground for recalling of order dated 21.04.2018 & 27.04.2017 is that applicant has moved two separate applications for producing additional evidence and recall of witness namely Suraj Ram. Both these applications have been decided by this court simultaneously along with this application and especially when Hon'ble High Court vide its order dated 12.03.2018 has upheld the order of this court closing the evidence of the defendants and the file was put up for arguments, therefore, this application is completely misconceived and is filed just to cause delay stand dismissed."
11. From Bare perusal of these orders it is evident that Court below has dismissed the applications mainly on the grounds that this court has already passed two orders at different stages of proceedings, thereby directing the trial court firstly to conclude the trial within six months in first order and thereafter in another petition upheld the order of trial thereby closing the right of defendants to produce the witnesses.
12. From the perusal of orders dated 25.08.2017/12.03.2018 passed by this Court, it appears that the petitioners filed one petition u/s 104 No.98/2014 against the order of court below dated 05.02.2013 by virtue of which right of the petitioners for leading evidence was closed. The said application was disposed of vide order dated 25.08.2017.The operative part of the said order is reproduced as under:
"...Be that as it may, a party to a suit has a right to fair trial. In view of the aforesaid enunciation of law, impugned order dated 05.02.2013 is quashed. The trial court shall decide the application for substitution of petitioners within one week from today and thereafter the trial court shall issue summons to the official witnesses. The petitioners shall produce remaining witnesses on the day which may be fixed by the trial OWP No.1603/2018 Page 8 of 18 court. The parties to the suit shall not seek unnecessary adjournment and shall appear before the trial court on 06.09.2017. The trial court shall make an endeavour to dispose of the suit within a period of six months from today. The record of the trial court be sent back forthwith.
With the aforesaid directions, petition is disposed of."
13. In compliance to this order, two witnesses were produced by the defendants, namely, Suraj Ram and Ramesh Kumar. Suraj Ram was examined, whereas learned counsel for the petitioners submitted that he does not want to examine another witness namely Ramesh Kumar. The Court below thereafter closed the right to produce further evidence of the petitioner. This order was also challenged before this court by filing another petition bearing OW104 24/2018 and this court on 12.03.2018 passed the following order:-
"I have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, by order dated 05.02.2013, the right of the petitioners to adduce evidence was closed. The petitioners challenged the aforesaid order in OW104 No.98/2014 which was disposed of by a bench of this Court on 25.08.2017, the operative portion reads as under:
"Be that as it may, a party to a suit has a right to fair trial. In view of the aforesaid enunciation of law, impugned order dated 05.02.2013 is quashed. The Trial Court shall decide the application for substitution of petitioners within one week from today and thereafter the trial court shall issue summons to the official witnesses. The petitioners shall produce remaining witnesses on the day which may be fixed by the trial Court. The parties to the suit shall not seek unnecessary adjournment and shall appear before the trial court on 06.09.2017. The Trial Court shall make an endeavour to dispose of the suit within a period of six months from today. The record of the trial court be sent back forthwith.
With the aforesaid directions, petition is disposed of."
The aforesaid order binds the Trial Court as well as parties. Therefore, the Trial Court could not have granted any further OWP No.1603/2018 Page 9 of 18 opportunity. In pursuance of the aforesaid order, the petitioners have produced two witnesses, namely Suraj Prakash and Ramesh Kumar and examined Suraj Parkash and stated that he does not examine another witness namely Ramesh Kumar. The aforesaid order binds the Trial Court as well as the parties.
The scope of supervisory jurisdiction of this Court has been examined by the Supreme Court in the case of Shalini Shyam Shetty and another v Rajendra Shankar Patil, 2010 8 SCC 239 and it has been held as follows:
"Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercise very sparingly on equitable principle. 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 the individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, 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 Article 227 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 the High Court."
14. This is the order on the basis of which, trial court has dismissed all the applications of the petitioners.
15. Order XVIII Rule 17 CPC reads as under:-
"Court may recall and examine witnesses--the court may at any stage of a suit recall any witness who has been examined and may (subject to any law of evidence for the time being in force ) put such question to him as court thinks fit."
16. Similarly Order XVIII Rule 17-A CPC reads as under:-
"Production of evidence not previously known or which could not be produced despite due diligence--Where a party satisfy the court that, after the exercise of due diligence ,any evidence was not within OWP No.1603/2018 Page 10 of 18 his knowledge or could not be produced by him at the time when party was leading his evidence , the court may permit that party to produce that evidence at later stage on such terms as may appear to it to be just."
17. From bare perusal of these provisions of laws, it is evident that Court has the power to recall any witness already examined and examine him again, for just decision of case or in order to decide the real controversy of case; and Court has also power to allow any party to produce the fresh evidence, which he could not produce despite due diligence. In administration of justice, especially at the level of trial court, it is duty of Court to do complete justice by allowing the parties to produce all evidence on which they rely. Liberal construction of procedural laws is to be applied at the level of Muffasil Court, where litigants are not so much vigilant of their cases. Procedural laws /rules are conceived to aid the attainment of justice; if a stringent application of rules is applied, it will hinder the justice than serve the demands of justice. Where a rigid application of procedural law will result failure or miscarriage of justice, then its strict compliance may be relaxed. Technicalities may be thus disregarded in order to resolve the case.
18. There are certain inherent powers vested in Court u/s 151 C.P.C for making any order as may be necessary for the ends of justice or to prevent abuse of process of court. This power can be exercised when there is no express provision of law, but court finds that some order is necessary for ends of justice.
19. In present case, a heavy burden was upon petitioners/defendants to prove that WIL in question was duly executed by deceased under law and was registered before Court according to law. This was main controversy between the parties. Admittedly, from perusal of WILL in question which is typed one, it is evident that its execution has been witnessed by two witnesses, one namely Suraj Ram, who has been examined and has OWP No.1603/2018 Page 11 of 18 denied this aspect of matter; but he was not confronted with his signature on WILL; another witness was R. K. Sharma, who was not produced before Court below, as counsel for defendant stated before Court below that he does not want to produce him. Before registering authority (Sub Registrar Akhnoor) at the time of registration of WILL deed on 21.9.1993, Mr. V.K Sharma advocate identified the testator; he has also drafted the WILL in question.
20. The applications of the petitioners, for recalling PW Suraj Ram for confronting his signature on original WILL and for producing additional evidence to prove WILL have been dismissed by Court below as already noted above by way of impugned orders, which counsel for petitioners have assailed.
21. In AIR 2011 (11) SCC 275 in case titled K.K. Velusamy Vs. N. Palaanisamy, it is held 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 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.
10. The respondent contended that section 151 cannot be used for re- opening 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 vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs. Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro OWP No.1603/2018 Page 12 of 18 Sciences vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1). We may summarize them as follows:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes 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 recognizes 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 co-extensive 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 necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or 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 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.
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 OWP No.1603/2018 Page 13 of 18 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.
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.
13. The learned counsel for respondent contended that once arguments are commenced, there could be no re-opening of evidence or recalling of any witness. This contention is raised by extending the convention that once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. 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. There can always be exceptions in exceptional or extra-ordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments.
14. Neither the trial court nor the High court considered the question whether it was a fit case for exercise of discretion under section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the OWP No.1603/2018 Page 14 of 18 ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings.
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 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.
16. We may add a word of caution. The power under section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will 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. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application.
17. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. Courts should constantly endeavour to OWP No.1603/2018 Page 15 of 18 follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, re-opening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency.
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)."
22. Similarly in 2008 (1) JKJ 27 HC in case tiled Krishna Devi Vs. Darshan Kumar, it is held as under;-
"6. Going by literal construction and strict application of the provisions of Order 18 Rule 17 (A) of the Code of Civil Procedure, the impugned order may not warrant any interference; But has such literal construction of the processual provision, by the trial Court, advanced or impeded, the cause of justice -- is the moot question that falls for consideration in this revision petition.
7. The language employed by the draftsman of processual law may be liberal or stringent, but the object of prescribing such procedure for the decision of a lis by a Court of law, is necessarily to advance the cause of justice.
8. The humanist rule that procedure should be the handmaid, and not the mistress, of legal justice vests a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise may be wholly inequitable. It is precisely for this reason that even the Code of Civil Procedure, in its Section 151 of the Code of Civil Procedure, retains this power of a Court while deciding a case.
9. It is well settled proposition of law that procedure prescribed for deciding a lis, may not be interpreted in such a fashion that it deprives the seeker of justice, of justice, only because it has either remained somewhat indolent in prosecuting its remedy or had been misled by one or the other factors disabling him/her from complying with the procedural requirement(s) in placing appropriately his cause before the Court.
10. The Court while dealing with the lis has, therefore, to be alive to the damage to which an indolent litigant, may be put to, in case of strict application of a procedural provision, and every attempt is required to be made to ensure that litigant's indolence or his bonafide inaction in complying with the requirements of a procedural statute, does not come in his way in placing requisite material before the Court which may advance the cause of justice, provided, however, that his adversary is suitably compensated, on such terms as the Court may consider fit and proper in the facts and circumstances of the case, so to do.OWP No.1603/2018 Page 16 of 18
11. One cannot loose sight of the stark reality that litigants invariably go by the advice of their legal advisors in deciding as to what type of evidence was required to be led in a particular case. Lack of requisite experience in the field and various other factors which may deprive the legal advisors practicing in remote rural areas to remain abrest with the latest law on the subject, at times, contributes to such lapses, which appear to have happened in this case too when the petitioner does not appear to have been advised to examine her daughter-in-law as a witness in the case for whose settlement she had filed the suit to get back the possession of the shop where she had proposed to start her Readymade Garment/Cosmetic, Store to earn her living.
12. While deciding as to whether or not the projected necessity of the petitioner for the occupation of the shop for its use by her daughter-in- law to start business therein, is reasonable and genuine, the statement of Mrs. Sushma, looked from any angle, will certainly help the Court in arriving at a just decision about the proposed necessity of the petitioner, for it is only Sushma who may depose about her resolve, capacity and urgent need pleaded by the petitioner in the suit.
13. Absence of Sushma's statement may thus come in the way of the Court in arriving at the truth or otherwise of the proposed need of the petitioner.
14. While declining petitioner's application seeking production of Sushma as her witness in the case, learned Munsiff, Basohli, had looked at the application and petitioner's request from a purely technical angle in the light of the provisions of Order 18 Rule 17 (A) of the Code of Civil Procedure. It had, however, omitted to take into consideration the relevance or otherwise of Sushma's evidence for the just decision of the case.
15. While operating the provisions of Order 18 Rule 17 (A) of the Code of Civil Procedure, a Court seized of a lis has not to be oblivious of its dominant duty to decide the real controversy between the parties with a view to deliver complete justice. Strict application of the provisions of Order 18 Rule 17 (A) of the Code of Civil Procedure which may come in the way of affording sufficient opportunity to the parties to project their view point before the Court may not thus be warranted. This provision, therefore, is required to be interpreted liberally leaving space for those cases where judicial conscience may require providing opportunity to the defaulting party to lead additional evidence in the case. This is so because a litigant may be permitted to lead evidence if production of such evidence was found essential for just decision of the case, even at the appellate stage.
16. Although the petitioner had assigned Sushma's sickness as the reason for her non-production, and even if such reason had not been found to be convincing, the trial Court was required to consider the relevancy or otherwise of the statement of Sushma for the just decision of the case. Learned Munsiff, Basohli, however, has not adverted towards this aspect of the case thereby debarring the petitioner of her inbuilt natural right to project her case properly and to her satisfaction before the Court to receive justice.
17. The course adopted by learned Munsiff in declining petitioner's application, in my opinion, has thus resulted in failure of justice.
18. Allowing one opportunity to the petitioner to produce Sushma, as a witness in the case, would not have placed the respondent in any such OWP No.1603/2018 Page 17 of 18 position which may be detrimental to his defence in the suit. The delay which may in the process of recording the statement of Sushma, and providing another opportunity to the respondent to lead any further evidence which he may like to lead so as to rebut the statement of Sushma, could well be compensated by costs."
23. In view of what has been discussed above and law on the subject, I am of considered opinion that orders passed in first two applications viz., 1) an application of the petitioners under order XVIII Rule 17 CPC; and 2) an application for producing additional evidence, are required to be set aside and at least two opportunities should be granted to petitioners, one to recall and produce PW Suraj Ram to confront him with his signatures on the original Will deed and, second to produce additional evidence, if any, to prove WILL in question, subject to payment of costs of Rs.2000/- to respondent. Ordered accordingly. This petition is disposed of accordingly.
(Sanjay Kumar Gupta) Judge Jammu 28.09.2018 Vijay OWP No.1603/2018 Page 18 of 18