Gujarat High Court
Atulkumar vs State on 9 May, 2011
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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SA/172/2009 13/ 13 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 172 of 2009
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ATULKUMAR
DEVCHANDBHAI SHAH - Appellant(s)
Versus
STATE
OF GUJARAT & 3 - Defendant(s)
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Appearance
:
MR MIHIR JOSHI, SR ADVOCATE with
MR MIHIR THAKORE, SR. ADVOCATE for MR
TARAK DAMANI for
Appellant(s) : 1,
Ms. VS PATHAK, ASST. GOVERNMENT PLEADER for
Defendant(s) : 1,
MR SB VAKIL, SR. ADVOCATE, with MS ARCHANA R
ACHARYA for Defendant(s) : 2,
None for Defendant(s) : 3 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 21/01/2011
ORAL
ORDER BELOW NOTE dt. 7.9.2009
(Annexure-I to Second Appeal) The appellant-original plaintiff has filed the present Second Appeal posing substantial questions of law as stated in Para 2 at page I. However, as preliminary objection has been raised by learned Sr. Counsel Mr. S.B. Vakil with learned advocate Ms. Archana Acharya, who appears on caveat for respondent No. 2, suggesting that the preliminary objection raised may be decided first, the learned counsel for both the sides have been heard. Thus, after hearing learned Sr. Counsel Mr. Mihir Joshi as well as learned Sr. Counsel Mr. Mihir Thakore with learned advocate Mr. Tarak Damani for the appellant and learned Sr. Counsel Mr. Vakil with learned advocate Ms. Acharya for the respondent No. 2-caveator, the following order has been passed.
2. The Note has been filed by the appellant seeking permission of this Court to take out the document at serial No. 30 in paper-book no. 3 supplied to this court for the reasons stated in the Note, inter alia, that the said document, which has been produced with the paper-book before this court, was not produced before the courts below and thereby, due to an inadvertent mistake, the said documents which have been put upon record of this court may be permitted to be taken out.
3. The second respondent has filed a detailed reply at Annexure-2 to the said Note filed by learned advocate Mr. Damani contending, inter alia, that "there is no provision in law for 'taking out' of any document supplied in a Paper Book, much less when supplying the same was an abuse of the process of the court." It is further contended that when such an application is not supported by any affidavit, such a note should not be entertained. It is also contended that inclusion of such a document at serial No. 3 in paper-book No. 3 has not been filed innocently but it has been by way of abuse of the process of the court. It is contended that initially the appellant produced the said document in paper-book No. 3 without mentioning the exhibit number before the trial court and therefore an objection was raised by the learned advocate for the second respondent. Time was taken to verify by the learned advocate for the appellant and thereafter the learned advocate for the appellant filed paper-book No. 3 & 4. It is also contended that paper-book No. 3 included the said document referring to as Exh. 236 of the suit. However, the Rojkam of the suit shows that Exh. 236 is an application for issuing witness summons and, therefore, when it was pointed out, a reply was given by the learned advocate for the appellant vide letter dated 22.8.2009 which has been also quoted and therefore the objection has been raised.
4. Learned Sr. Counsel Mr. Vakil appearing with learned advocate Ms. Archana Acharya for respondent No. 2 submitted that the document which is purported to be a kabulatnama at Exh. 236 was filed to substantiate grounds P & Q in the main matter i.e. the Second Appeal though it has not been brought on record before the courts below. Learned Sr. Counsel Mr. Vakil submitted that it is not a mistake but an abuse of the process of the court. Learned Sr. Counsel Mr. Vakil submitted that an advocate as an officer of the court owes an obligation first to verify the record and then only he has to pass on the papers like the paper-book to the court for the purpose of assisting the court. He emphasised with regard to the conduct and the manner in which the document has been sought to be placed on record with the paper-book though it has not been part of the record of the trial court or the lower appellate court.
5. Learned Sr. Counsel Mr. Vakil referred to and relied upon the judgment of the Hon'ble Apex Court reported in 2001(9) SC 326 in the case of B. Laxmidevamma v. State of A.P. And ors., and submitted that it is well accepted that while considering such second appeal, the court has to consider only the papers which are on record of the case and, admittedly, when the document sought to be produced is not forming part of the record, it could not have been passed on to the court with the paper-book. This is a mischief and for that purpose the conduct of the appellant and his advocate is required to be considered.
6. Learned Sr. Counsel Mr. Vakil has also referred to the judgment reported in (2006) 13 SCC 353 in the case of Sathi Vijay Kumar v. Tota Singh and ors. and submitted that the Hon'ble Apex Court has discussed as to when the pleadings can be ordered to be struck off referring to the observations in Para 81 at page 381. He emphasised that in that case also the list was sought to be produced with the affidavit-in-rejoinder containing certain documents and it was without any permission to produce such document they were placed with the affidavit-in-rejoinder and therefore the Hon'ble Apex Court has taken note thereof and observations have beenmade.
7. Learned Sr. Counsel Mr. Vakil referred to O.41 R. 27 and 28 and submitted that the provisions of the Code of Civil Procedure, as stated above, is very clear and therefore it cannot be said that there is an inadvertent mistake. He has also referred to and relied upon the observations made in Para 81 of the said judgment at page
381.
8. Learned Sr. Counsel Mr. Vakil has also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of K.D. Sharma v. Steel Authority of India Ltd. And ors., reported in (2008) 12 SCC 481, and referring to the the observations made in Para 27 he emphasised referring to the earlier judgment in the case of A.V. Papayya Sastry v. Govt. of A.P. [(2007) 4 SCC 221] quoted by the Hon'ble Apex Court, "It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order - by the first court or by the final court - has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings."
Learned Sr. Counsel Mr. Vakil submitted that it has again been observed, "The Court defined "fraud" as an act of deliberate deception with the design of securing something by taking unfair advantage of another."
9. Learned Sr. Counsel Mr. Vakil has also referred to and relied upon the judgment reported in 1979(2) GLR 652 in the case of Bai Virkor d/o Mulsing Ramsing v. Prajapati Damodar Boghabhai and submitted as to what could amount to an abuse of the process of the court and submitted that if want of bona fides is suggested, the court has ample power to struck off the pleadings. He has also submitted, referring to Para 13, that any attempt to misguide the court deliberately by suppressing the fact or under a false fact would also be a ground for striking off the pleadings.
10. Learned Sr. Counsel Mr. Vakil strenuously submitted that it is not a mistake, but it is a mischief which should not be permitted and particularly when there is no provision for withdrawing the document. He therefore submitted that as provided in O. 41 R. 27 & 28 the matter should be dismissed and should not be entertained. He submitted that the fact that no order has been passed relying on such document cannot be a ground to condone such an attitude.
11. Learned Sr. Counsel Mr. Mihir Joshi as well as learned Sr. Counsel Mr. Mihir Thakore appearing for the appellant have submitted that the paper-book containing such a document was given inadvertently by mistake. However, the fact remains that the matter has not been heard on merits. It was submitted that there is no suppression or any ill-motive suggested and there is no deliberate attempt to pass on some document which is not forming part of the record of the trial court or the lower appellate court.
12. Learned Sr. Counsel Mr. Joshi has submitted that in a second appeal under sec. 100 of Code of Civil Procedure the Court is not exercising any equitable jurisdiction and, therefore, the Court has to consider the substantial question of law according to the statutory provision. Learned Sr. Counsel Mr. Joshi submitted that even if there is any suppression of facts, it would not result in dismissal of the suit or the appeal as sought to be canvassed.
13. Learned Sr. Counsel Mr. Joshi submitted that there is no abuse of the process of the court as no order has been passed and there is nothing to suggest that relying on such document any order was sought to be obtained or relief was claimed.
14. Learned Sr. Counsel Mr. Thakore for the appellant has also submitted that it is not an original proceeding, but it is a second appeal and, normally, the R&P is called for and referred to for verification of any evidence or document. He therefore emphasised that it cannot be argued or suggested that there was any deliberate attempt or mischief sought to be committed. Learned Sr. Counsel Mr. Thakore submitted that there is no doubt that the said document is not a part of the record, but by inadvertence, it has been included for the purpose of use by the Counsel in the paper-book, which is then passed on to the court in the compilation. However, he emphasised that the matter has not proceeded on merits. The Court has not considered such document and no relief has been claimed relying on such document and therefore such submission with regard to abuse of the process of the court or deliberate mischief may not be accepted. He submitted that at the most it could be a lapse which would require to be condoned subject to imposition of cost, but there is no suppression of fact or deliberate mischief as sought to be canvassed.
15. Learned Sr. Counsel Mr. Thakore submitted that even R. 27 & 28 of O. 41 provide for production of additional evidence in the appellate court and, therefore, when there is no reliance placed on any such document, merely because the paper-book contained some document which is not forming part of the record, it should not be a ground to dismiss the appeal on the ground of suppression or any mischief.
16. Learned Sr. Counsel Mr. Thakore has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of B. Laxmidevamma (supra) and submitted that the facts were different and there was a fraud alleged in producing forged document in the Writ Petition, which is not the case here and therefore it will not have any application. He emphasised that even in such case an inquiry has been ordered subject to hearing the petitioner.
17. Similarly, Learned Sr. Counsel Mr. Thakore referred to and relied upon the judgment in the case of Sathi Vijay Kumar (supra) and submitted that it refers to the circumstances in which the pleadings can be ordered to be struck off and again it has been observed that it has to be resorted to sparingly.
18. Referring to the judgment in the case of K.D. Sharma (supra), learned Sr. Counsel Mr. Thakore submitted that again the facts were different as in a Writ Petition a false statement was made which is not the case here and therefore the observations will not have any application as it cannot be said that any fraud has been practised. Learned Sr. Counsel Mr. Thakore submitted that even in the observations quoted, it has a reference to the obtaining of any judgment or order by playing fraud, whereas in the facts of the case, this matter has not proceeded on merits and therefore it cannot be said that any order has been sought to be obtained by unfair advantage.
19. He, therefore, submitted that the preliminary objection may not be sustained.
20. In view of rival submissions, it is required to be considered whether the preliminary objection, which has been much emphasised by learned Sr. Counsel Mr. Vakil for respondent No. 2, can be sustained or not.
21. Though the submission has been made by learned Sr. Counsel Mr. Mihir Joshi that in exercise of discretion under sec. 100 of the Code of Civil Procedure in a Second Appeal, the Court is not exercising the equitable jurisdiction and has to consider only the substantial question of law according to the statutory provisions and the further submission that even if there is any suppression of fact, it would not result in dismissal of the suit and no such order could be passed by this Court, is required to be considered.
22. It is required to be mentioned that even in exercise of discretion under sec. 100 of the Code of Civil Procedure in Second Appeal though it may not be equitable jurisdiction and the court has to decide only substantial question of law, the submission cannot be readily accepted that this Court has not to consider any suppression or fraud. The approach for deciding any such issue has to be fairplay and justice. If, therefore, it is pointed out from the material on record of the court in a given case where there is a fraud or there is any other complaint with regard to the irregularity, the court has to examine and exercise the jurisdiction resorting to appropriate provisions including sec. 151 of the Code of Civil Procedure in order to do justice between the parties and no party can claim to have any kind of exemption on such ground with regard to the scope of exercise of jurisdiction or discretion, as otherwise it would amount to allowing the party to take undue advantage of the irregularity or fraud.
23. Therefore, the submission with regard to exercise of discretion by this Court cannot be readily accepted as it is sought to be canvassed. At the same time, it will have to be considered depending upon the facts and circumstances of each case like in the present case as to whether there is any ill-motive or mischief or deliberate attempt to misguide the court for claiming any order or relief.
24. As it could be seen from the Note produced at Annexure-I, it has reference to a document at serial No. 30, which is a kabulatnama produced with the paper-book before the High Court, though it is not forming part of the record before the trial court or the lower appellate court. It is an admitted fact that it is not forming part of the record before the courts below and the paper-book contained such a document which is now sought to be permitted to be taken out, which is objected on the ground of mischief and a deliberate attempt to mislead the court for serving the purpose of obtaining some order on the basis of such document.
25. The provisions of O.41 R. 27 & 28 refer to the aspect of additional evidence and when and how it could be permitted by the appellate court. The controversy in the present case is not with regard to producing any additional evidence, but whether the document at serial No. 30 produced with the record, though not forming part of the original record before the lower courts, could be permitted to be taken out or whether any motive or mischief could be attributed which would warrant stern action of striking off the pleadings and dismissing the present Second Appeal.
26. The submissions which have been made at length by both the sides as recorded hereinabove clearly suggest that the matter has not proceeded on merits. The paper-book contained such document at serial No. 30, which was not forming part of the original record, and therefore when it has been pointed out such a Note has been filed.
27. It is well accepted that while deciding such Second Appeal, the High Court will examine the original record and the record and proceedings would be called for appreciating the evidence or documents and would not consider any other document unless it is on record or unless there is any specific application made for permitting any additional evidence in accordance with law. There is no such application made and therefore there is no question of considering such document at serial No. 30 which is not forming part of the original record.
28. The appellant has, therefore, only sought permission to take out such document, which would mean that it would not be considered for the purpose of the present Second Appeal and therefore the reliance placed by learned Sr. Counsel Mr. Vakil with much emphasis referring to the conduct and suggesting that there is a deliberate attempt to misguide the court or play mischief cannot be accepted. The judgments referred to by learned Sr. Counsel Mr. Vakil were in the writ proceedings where a document or some document which was sought to be relied upon was placed with the affidavit or rejoinder which would be considered by the court while deciding the case on merits.
29. In the fact of the present case, as provided and as stated hereinabove, the court has to decide the Second Appeal on the basis of the material and evidence already on record before the courts below and therefore there is no question of any misguiding relying upon such document as this court would not permit any reliance on such document which is not forming part of the record. Admittedly, the matter has not proceeded on merits and therefore a mistake, may be a genuine mistake, that a paper book of the lawyer containing such document was given to the court resulting in this kind of situation. Therefore, it would not be proper to not permit such a request made in the Note for taking out the document which has been given by inadvertence which is not forming part of the record and which is not to be relied upon and, still, the pleadings cannot be struck off and the Second Appeal cannot be dismissed. It would otherwise be harsh inasmuch as the Second appeal which is normally the last recourse before the High Court is disposed of without considering the case on merits. Even the judgement of the Hon'ble Apex Court in the case of Sathi Vijay Kumar (supra) has also observed that it must be resorted to sparingly with extreme care. It is required to be mentioned that in this judgment reference is made to O.6 R. 6 referring to striking off the pleadings where it is found to be unnecessary, frivolous and to cause prejudice to the fair trial. It is not a pleading inasmuch as the paper book is only referred to for the purpose of assisting the court, and as stated above, the document at serial No. 30 which is not forming a part of the original record, would not be considered as the court has to consider in Second Appeal only such evidence and the documents which are on record.
30. In the circumstances, the preliminary objection sought to be raised by learned Sr. Counsel Mr. Vakil raising the objection to the Note seeking permission to take out the document at serial No. 30 in the paper-book supplied to this court by mistake or inadvertence cannot be sustained. Hence, the document at serial No. 30 in the paper-book supplied to this Court is ordered to be returned to the appellant.
Accordingly, the Note at Annexure-I to the present Second Appeal stands disposed of.
(Rajesh H. Shukla, J.) FURTHER ORDER After the order was pronounced, learned advocate Ms. Archana Acharya for respondent No. 2 submitted that the order permitting the petitioner to take out the documents may be stayed for six weeks, to which learned advocate Mr. Damani has resisted. Having heard learned counsel for the respective parties and considering the facts, the operation of the order is stayed for a period of six weeks to enable learned advocate Ms. Acharya to approach the higher forum. The document in question, accordingly, shall not be permitted to be taken out till then.
(Rajesh H. Shukla, J.) (hn) Top