Gujarat High Court
Prabhatbhai Merambhai Herbha vs Nileshkumar Ramanbhai Patel on 3 April, 2025
NEUTRAL CITATION
C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17981 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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PRABHATBHAI MERAMBHAI HERBHA
Versus
NILESHKUMAR RAMANBHAI PATEL
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
MR ABHISHEK M MEHTA(3469) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/04/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Abhishek M. Mehta waives service of notice of rule on behalf of respondent.
2. The present writ application is filed under Article 227 of the Constitution of India seeking following reliefs.
"(A) YOUR LORDSHIPS be pleased to issue an appropriate writ, order or direction quashing and setting aside the common order dated 02.07.2022 passed by the learned 8th Additional Senior Civil Judge, Vadodara below applications Exhs.241 and 242 filed by the petitioner, and further be pleased to allow the applications Exhs.241 and 242;Page 1 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025
NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined (B) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to direct the Hon'ble Trial Court to stay the proceedings of Special Civil Suit no. 290 of 2012 as well as the common order dated 02.07.2022 passed by the learned 8th Additional Senior Civil Judge, Vadodara below applications Exhs.241 and 242 filed by the petitioner; and further be pleased to allow the applications Exhs.241 and 242;
(C) YOUR LORDSHIPS be pleased to grant such other and further reliefs, in favour of the petitioner, as deemed fit in the interest of justice."
3. The parties will be referred as per their original position in the suit.
4. Short facts:
4.1 Petitioner herein happens to be original defendant of Special Civil Suit No. 290 of 2012 filed by respondent hearing before the Court of learned 8 th Additional Senior Civil Judge, Vadodara seeking cancellation of the registered sale deed executed by plaintiff in favour of defendant.
4.2 Considering controversy involved in the present matter, no further facts are required to be disclosed as far as suit is concerned except following few dates which are necessary to determine controversy germane in the application.Page 2 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025
NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined The issues were framed below Exhibit 26 on 16th October 2018. The plaintiff's evidence got over and closing process was filed on 15th October 2018.
The defendant was cross-examined on 10 th August 2021 and he has closed his evidence on 4th October 2021.
The suit was posted for oral arguments of plaintiff after receiving written submissions of plaintiff and defendant.
At that stage, impugned application below Exhibit 241 and 242 were filed by defendant on 18th January 2022. As per the endorsement of trial court, same were submitted through post rather than submitting directly to the court.
4.3 The defendant has requested the trial court to reopen right of defendant to re-examine himself by recalling his evidence, for which, impugned application below Exhibit 241 was filed. Whereas impugned application filed below Exhibit 242 was in relation to examination after reopening of right of defendant to lead evidence--request for issuance of witness summons to concerned officer of Sub-Registrar Vadodara, Income Tax, Rajkot, Sub-Registrar, Chotila, and Talati-cum- Mantri, Chotila.
Page 3 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined 4.4 Both these impugned applications were strongly objected by plaintiff having filed his detailed reply below Exhibit 245. The plaintiff has mainly objected the application on the ground that defendant has changed lawyers more than once, and when another advocate engaged by him while his appearance on 3 rd January 2022, then after, impugned applications were filed. The endeavour of defendant throughout trial is to delay it on any count. The defendant has already closed his evidence way back on 4th October 2021, and after submission of written arguments at the stage of oral arguments, such impugned applications were filed, are misconceived and not required to be accepted.
4.5 After hearing the parties, the trial court vide its common order dated 2nd July 2022 rejected both these applications.
5. Being aggrieved and dissatisfied, defendant has challenged impugned order passed below Exhibit 241 and 242 by way of present writ application.
6. This court on 15th December 2022 passed following order:
"Heard learned Senior Advocate Mr. R.S. Sanjanwala with learned Advocate Mr. Pratik Jasani on behalf of the petitioner who by way of this petition challenges a common order dated 02.07.2022 passed by the learned 8 Page 4 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined th Additional Senior Civil Judge, Vadodara in Special Civil Suit No. 290 of 2012 whereby an application below Exh. 241 and Exh. 242 for production of documents and for witness summons had been rejected. Learned Senior Advocate Mr. Sanjanwala at the outset would tender a copy of an additional affidavit and would submit that it had come to the notice of the original applicant upon perusal of the suit proceedings that the documents which were sought to be produced and for production of which documents witness summons was requested for, were already exhibited and whereas now the question would be of only proving such documents and also with regard to recalling/re-examining the respondent-original plaintiff as per application Exh.242. Learned Senior Advocate would submit that under such circumstances, while the present petition may not survive for the principal reliefs, this petition may be entertained on the limited ground as requested for hereinabove. Under such circumstances, issue notice on the limited aspect as submitted by learned Senior Advocate Mr. Sanjanwala returnable on 21.12.2022. Direct service is permitted.
To be listed on the top of the board. "
6.1 Thus, in view of the aforesaid order and the statement made by learned senior counsel appearing for the petitioner - original defendant, scope of the present writ application is confined as to whether defendant's evidence can be allowed to be reopened and also whether defendant can be allowed to recall the plaintiff for cross-examination.
7. Submissions of the petitioner:
7.1 Learned counsel Mr. Pratik Jasani appearing for the Page 5 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined petitioner - original defendant would submit that the trial court has, without appreciating the provisions of law, committed a gross error of law while rejecting impugned application.
7.2 Learned counsel Mr. Jasani would further submit that right of defendant to lead further evidence could not have been foreclosed once certain facts have come on record, thereby defendant was required to prove contents of documents by examining witnesses and also to confront plaintiff on certain issues.
7.3 Learned counsel Mr. Jasani further submits the defendant has narrated facts and reasons for submitting impugned applications whereby made out a case for reopening of his defence which was closed.
7.4 Learned counsel Mr. Jasani would submit that proper appreciation of the submissions of defendant and having wrongly relied upon the decision of Honourable Apex Court and Delhi High Court, the trial Court has erroneously rejected impugned applications.Page 6 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025
NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined 7.5 Learned counsel Mr. Jasani would further submit that merely because suit is at the stage of arguments of parties, it would not be ground to reject the impugned applications.
7.6 Learned counsel Mr. Jasani would submit that no prejudice will be caused if prayers made in the impugned applications will be accepted by this court, as defendant undertakes to complete his evidence within time-bound manner, for which any cost required to be borne by defendant, he is ready to bear it.
7.7 Making above submissions, learned counsel Mr. Jasani would request this court to allow the present writ application.
8. Submissions of the respondents:
8.1 Per contra, learned counsel Mr. Abhishek Mehta with learned advocate Ms. Chaitali Dave has vehemently objected present writ application and took me through the reply filed by the plaintiff in the present writ application.
8.2 Learned counsel Mr. Mehta would further submit that defendant has changed more than one lawyer, and reason of filing impugned applications is due to change of lawyer who Page 7 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined has influenced the mind of defendant to file impugned applications, which is in fact not directly submitted to the court but sent through post.
8.3 Learned counsel Mr. Mehta would further submit that in past, defendant has also levelled irresponsible and unsubstantial allegations against presiding officer, and considering such conduct, present applications require to be rejected.
8.4 Learned counsel Mr. Mehta would further submit that power of recalling of witness cannot be exercised routinely, and as per settled legal position of law, defendant has failed to make out any exceptional circumstances for reopening his right to lead further evidence.
8.5 Learned counsel Mr. Mehta would further submit that the trial court, while rejecting impugned applications, has recorded each and every fact, conduct of defendant as well as every recording of evidence by the trial court at the relevant point of time. He would further submit that as such, there is no error committed by the learned judge in the impugned order, thereby it would not require any interference of this court while exercising its power under article 227 of the Constitution of India.Page 8 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025
NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined 8.6 Learned counsel Mr. Mehta would further submit that to fill up the lacuna and omission in the evidence of defendant, impugned applications are filed, which is correctly rejected by the trial court.
8.7 To buttress his arguments, he would rely upon the decision of this court dated 16.01.2025 in case of Abdulrahim Mamadbhai Parasar vs. Rudabhai Jiavanbhai Bambhva passed in Special Civil Application Nos. 14705 of 2024 with 15353 of 2024.
No other and further submissions are made.
9. Analysis:
9.1 Before adverting to the issue involved in the matter, I would to remind myself scope and power available to this Court while exercising its power under Article 227 of the Constitution of India which is succinctly discussed in following two decisions of Honourable Supreme Court of India. First one in a case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, the relevant observation of the aforesaid judgment reads as under:-
"[6] In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the Page 9 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering various facets of the issue, the two Judge Bench culled out the following principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does Page 10 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied:
(i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very Page 11 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. ( (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49) "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of Page 12 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined 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 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 [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] , 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'.
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(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 the 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 [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.
(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.
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(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 the 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. 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 counterproductive and will divest this extraordinary power of its strength and vitality."
Emphasized supplied.
Page 15 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined 9.2 The second decision in a case of Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein the Hon'ble Supreme Court of India has held as under:-
15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a Court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior Court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the Court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6) Page 16 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Courts or tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior Court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or tribunal has come to."
Emphasized supplied.
9.2 Now adverting to the issue germane in the matter, by way of impugned applications, defendant wants to re-examine himself as well as to call upon other witnesses including plaintiff.
9.3 As such, after going through the impugned applications and impugned order passed by the trial court, no error can be Page 17 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined found in the impugned order, as defendant appears to have filed both these applications after closing of his own defence and filed at the belated stage of final arguments. The issue involved in the matter is also squarely covered by the decision of this court in case of Abdulrahim (supra).
9.4 To better understand the facts of the present case, few things required to be considered and observed which are as under:
Plaintiff was cross-examined on 15th October 2018.
The defendant was cross-examined on 10 th August 2021 and his evidence was closed on 4th October 2021.
Till such time, defendant has not thought it fit to either recall plaintiff and/or to further examine himself and/or to call upon other witnesses of Income Tax Department, Talati-cum-Mantri or respective offices as referred hereinabove.
The main reason of filing impugned application appears to be change of lawyer by the defendant, as undisputedly fourth advocate was engaged by the defendant at the stage of final arguments of the suit on 3rd January 2022.
The impugned applications were sent in post to the trial court on 18th January 2022, which were received on same Page 18 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined day, i.e. 18th January 2022.
When the suit was already pending for final arguments of parties, defendant could have submitted these applications before the trial court, but for reasons best known to him, he has sent it through post.
9.5 The defendant has not made out a case to reopen his evidence thereby to recall his own evidence in impugned application filed below Exhibit 241. The answers which are given by him during his cross-examination are not only recorded by the trial court, as observed by the trial court in its impugned order, but also after completion of cross-
examination of defendant, copy is signed by defendant and his advocate at that time.
9.6 It appears that due to change of lawyer, to fill up the lacuna and omission on the part of defendant in his evidence, impugned application below Exhibit 241 was filed. The same cannot be allowed, which is rightly rejected by the trial court.
9.7 Likewise, impugned application filed below Exhibit 242 is for calling other witnesses who are officers of different offices/ authorities. No reasons are assigned by defendant in the Page 19 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined impugned application as to why defendant could not examine those witnesses at the given point of time. The only excuse on the part of defendant is due to bona fide and inadvertence while closing his evidence, failed to examine those witnesses.
9.8 As per the settled legal position of law, unless and until there is a case made out for recalling of witnesses, and in exceptional circumstances when anything new comes on record during the examination of the parties, the trial court should not exercise its power under Order 18 Rule 17 read with Section 151 of the CPC to recall any witness and/or to examine further witnesses, as the case may be.
10. The issue is discussed in detail by this court in its decision dated 16th January 2025 in Special Civil Application No. 14795 of 2025, wherein it has been observed and held as under:
"13. This Court would like to refer to the provisions of law under which the impugned applications were filed, which read as follows:
ORDER XVIII RULE 2 OF THE CODE, 1908 "2. Statement and production of evidence.--
(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to Page 20 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case.
[(3A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.
(3B) A copy of such written arguments simultaneously shall be furnished to the opposite party.
(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjourment. (3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit.
*[(3A) A party shall, within four weeks prior to commencing the oral arguments, submit concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record. (3B) The written arguments shall clearly indicate the provisions of the laws being cited in support of the arguments and the citations of judgments being relied upon by the party and include copies of such judgments being relied upon by the party.
(3C) A copy of such written arguments shall be furnished simultaneously to the opposite party. (3D) The Court may, if it deems fit, after the Page 21 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined conclusion of arguments, permit the parties to file revised written arguments within a period of not more than one week after the date of conclusion of arguments.
(3E) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment. (3F) It shall be open for the Court to limit the time for oral submissions having regard to the nature and complexity of the matter.]"
ORDER XVIII RULE 17 OF THE CODE, 1908
17. Court may recall and examine witness.--The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit..
SECTION 151 OF THE CODE, 1908
151. Saving of inherent powers of Court.-- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
SECTION 135 OF THE EVIDENCE ACT
135. Order of production and examination of witnesses. The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.
14. So far as the first impugned application filed by the petitioner below Exhibit 80 is concerned, it was filed under Order XVIII Rule 17 read with Section 151 of the Code, 1908, for recalling the plaintiff for further cross-Page 22 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025
NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined examination. It we see such provisions, it becomes clear that discretion is available to the Court to recall any witness at any stage of the suit and put such questions to him as the Court thinks fit. Section 151 gives inherent power to the Trial Court to make such orders as may be necessary for the ends of justice and/or to prevent abuse of the process of the Court.
14.1 The power of recalling and examining the witness at any stage of the suit by the Court is discretionary, but such discretion cannot be exercised arbitrarily. By now, the law on the issue involved in the impugned application filed below Exhibit 80 is well settled, whereby it has been clearly held by the Hon'ble Supreme Court of India that the main purpose of Order XVIII Rule 17 of the Code, 1908, is to enable the Court, while trying a suit, to clarify any doubt it may have with regard to the evidence led by the parties. It is made clear in express terms that such provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.
14.2 If ample opportunity was available to the parties to cross-examine witnesses on each and every aspect, and due to any reason, including inadvertence on the part of the learned advocate of the concerned party, who, according to such party, failed to effectively cross- examine the witness concerned, such a witness cannot be recalled to fill the lacuna or omissions in the evidence of the witness, who has already been examined. Even according to this Court, the power under Section 151 of the Code, 1908, is not an unfettered or unguided power to be exercised by the Civil Court against the provisions of law but rather exercised to advance substantial justice.
15. xxx xxx xxx
16. xxx xxx xxx
17. xxx xxx xxx
18. It is worth to note that the defendant had an ample opportunity to cross-examine the plaintiff on every aspect of the matter, including the defenses set out in his Page 23 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined written statement. For any reason, if the earlier lawyer of the defendant did not effectively cross-examine the plaintiff, at this stage, the witness - plaintiff cannot be recalled for further cross-examination to fill up the omissions on the part of the petitioner - defendant.
19. If such a request made by the defendant is allowed, it would open a Pandora's box, as in every civil trial, either party may start using such practices to request the Court to recall witnesses to put certain questions, which were left out during cross-examination. This cannot be permitted by resorting to the discretionary power of the Civil Court under Order XVIII Rule 17 or Section 151 of the Code, 1908.
20. At this stage, the first judgment cited by the learned advocate for the petitioner, the Hon'ble Supreme Court of India in the case of K K Velusamy (Supra), needs to be considered. The learned advocate for the petitioner - defendant has emphasized and taken this Court through paragraphs 4, 9 to 11 and 14 to 16, thereby submitted that, as per the aforesaid decision, if 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, it requires to be taken note of by the Trial Court while adjudicating the application.
21. The relevant observations made by the Hon'ble Supreme Court of India in the case of K K Velusamy (Supra), reads as under:-
"4. The suit was filed on 26.3.2007. The written statement was filed on 12.9.2007. Thereafter issues were framed and both parties led evidence. On 11.11.2008 when the arguments were in progress, the appellant filed two applications (numbered as IA No.216/2009 and IA No.217/2009). The first application was filed under section 151 of the Code of Civil Procedure (`Code' for short) with a prayer to reopen the evidence for the purpose of further cross-Page 24 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025
NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined examination of Plaintiff (PW1) and the attesting witness Eswaramoorthy (PW2).
IA No.217/2009 was filed under Order 18 Rule 17 of the Code for recalling PWs.1 and 2 for further cross examination. The appellant wanted to cross-examine the witnesses with reference to the admissions made during some conversations, recorded on a compact disc (an electronic record). In the affidavits filed in support of the said applications, the appellant alleged that during conversations among the appellant, respondent and three others (Ponnuswamy alias Krishnamoorthy, Shiva and Saravana Kumar), the respondent-plaintiff admitted that Eswaramoorthy (PW2) had lent the amount (shown as advance in the agreement of sale) to the appellant through the respondent; and that during another conversation among the appellant, Eswaramoorthy and Shiva, the said Eswaramoorthy (PW2) also admitted that he had lent the amount (mentioned in the agreement of sale advance) through the respondent; that both conversations were recorded by a digital voice recorder; that conversation with plaintiff was recorded on 27.10.2008 between 8 a.m. to 9.45 a.m. and the conversation with Eswaramoorthy was recorded on 31.10.2008 between 7 to 9.50 p.m.; and that it was therefore necessary to reopen the evidence and further cross-examine PW1 and PW2 with reference to the said admissions (electronically recorded evidence) to demonstrate that the agreement of sale was only a security for the loan. It is stated that the Compact Disc containing the recording of the said conversations was produced along with the said applications.
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 Page 25 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined 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 V/s. State of UP-AIR 1961 SC 218; Manoharlal Chopra V/s. Seth Hiralal - AIR 1962 SC 527; Arjun Singh V/s. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. V/s. Kanhay Lal - AIR 1966 SC 1899; Nain Singh V/s. Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. V/s. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate V/s. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences V/s. C Parameshwara -
Page 26 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined 2005 (2) SCC 256; and Vinod Seth V/s. 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 Page 27 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined 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 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 Page 28 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined 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.
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 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 Page 29 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined 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."
Page 30 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined
22. The ratio of the aforesaid decision in the case of K.K. Velusamy (Supra) would be that if any evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to just and effective adjudication, then the discretion requires to be exercised by the Trial Court by granting permission to recall the witnesses."
11. It is also required to be noted that the defendant has tried to delay the trial of suit having filed transfer application before the District Court, thereby seeking transfer of the suit proceedings, which is nothing but attempt on the part of the defendant to delay the adjudication of the suit.
11.1 Respondent herein, in his reply affidavit, has clearly stated that baseless allegations have been made in such transfer application, thereby trying to browbeat presiding judge of the trial court. Thus, the facts which are mentioned in the affidavit-in-reply remain uncontroverted by the petitioner.
12. In view of the aforesaid, considering the totality of the facts and circumstances of the case, and considering the scope and ambit of Order 18 Rule 17 read with Section 151 of the CPC as well as decision of this court, which has followed decision of Honourable Apex Court, I am of the view that neither any gross error nor any jurisdictional error committed Page 31 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025 NEUTRAL CITATION C/SCA/17981/2022 JUDGMENT DATED: 03/04/2025 undefined by the trial court while rejecting impugned application. In fact, impugned order is well-reasoned order considering all aspects of the matter, which does not require any interference by this court while exercising its power under Article 227 of the Constitution of India.
13. Conclusion 13.1 The upshot of the aforesaid observations, discussions and reasons: I do not find any merit in the writ application, which is required to be dismissed and is hereby dismissed. Rule discharged. Interim relief stands vacated.
13.2 Petitioner is directed to deposit cost of ₹10,000 (Rupees10,000 (Rupees Ten Thousand Only) before the District Legal Services Authority within two weeks from the date of receipt of the order. The trial court shall see that compliance of the order of cost by the defendant is made.
(MAULIK J.SHELAT,J) DRASHTI K. SHUKLA Page 32 of 32 Uploaded by DRASHTI K. SHUKLA(HC00354) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 21:28:47 IST 2025