Patna High Court
Nathuni Mian And Ors. vs Amir Hussain And Ors. on 12 May, 1995
Equivalent citations: 1995(2)BLJR1407
JUDGMENT
B.L. Yadav, A.C.J.
1. This is a defendants' Letters Patent Appeal in a suit for declaration of title on the basis of two sale deeds dated 14th November, 1979 (Ext. 2 & 2/a) executed by one Sarifan Bibi, who was entitled to 1/2 share in their favour and the plaintiffs became owner of the property to the extent of 1/2 share and there was some dispute in cultivation, hence it was imperative that 1/2 share be partitioned. Consequently the relief for partition was also asked alongwith relief for declaration.
2. The factual matrix of the case is contained in the averments of the plaint. Suit properties belonged to one Budhan Mian father of defendant No. 1 and Nabi Hussain Mian. The plots were recorded in the survey settlement in the name of Budhan Mian as 3/4 share and Nabi Hussain Mian as 1/4 share. After the death of Budhan Mian, his son Nathuni Mian and daughter Sarifan Bibi became the surviving heirs entitled to 1/2 share each Smt. Sarifan Bibi executed two sale deeds of her 1/2 share in favour of plaintiff Nos. 1 and 2 but their possession was objected by the defendants-appellants and it was difficult to cultivate 1/2 share separately hence necessity for the suit arose.
3. The suit was contested by the defendants 1 to 10 by filing a written statement denying the plaintiffs' allegations but later on defendant Nos. 6 to 10 filed a fresh written statement almost accepting the claim of the plaintiffs.
4. The issues framed by the trial court were as to whether the suit was maintainable, whether there was any cause of action for the suit, whether the suit was barred by the principles of estoppel, waiver and acquiescence and also barred by limitation, whether Sarifan Bibi, vendor of the plaintiffs was the daughter of Budhan Mian and whether the plaintiffs were entitled to the relief claimed for. Some other issues not very material were also framed.
5. The main issue was as to whether Sarifan Bibi was the sister of Nathuni Mian and daughter of Budhan Mian. But this issue was decided by the trial court on consideration of entire evidence available on the record holding that Sarifan Bibi was sister of Nathuni Mian and daughter of Budhan Mian. The sale deeds executed by Sarifan Bibi in respect of her 1/2 share in favour of plaintiffs were held to be legal and valid. The suit was accordingly decreed. Against that decree the defendants-appellants preferred an appeal which was dismissed by the learned Single Judge of this Court by judgment and decree dated 3rd September, 1991. This was also held that even though defendant Nos. 6 to 10 filed additional written statement subsequently without permission of the Court, but that itself would not entitle the defendants-appellants to any legal right. Against that judgment and decree the present Letters Patent Appeal has been filed.
6. It was urged by Sri N.K. Prasad, the learned Senior counsel for the appellants that the plaintiffs and their witnesses were catted upon to prove as to whether Sarifan Bibi was sister of Nathuni Mian. This Could be proved only by the statement of such witnesses who have special means of knowledge as provided under Section 50 of the Evidence Act (for short the Act). Under Order VIII Rule 9 of the Code of Civil Procedure (for short the Code) no subsequent written statement on behalf of defendants 6 to 10 could have been filed except by the leave of the Court. Such subsequent written statement could not have been accepted. It was further submitted that Sarifan Bibi was vendor and a party to the suit but was not examined hence adverse inference be drawn against plaintiffs-respondents under Section 114(g) of the Act.
7. Learned Counsel appearing for the respondents, on the other hand, refuted the submissions of the learned Counsel for the appellants and urged that conditions under Section 50 of the Act were fulfilled, and appellants did not state that assuming that Sarifan Bibi was not sister of Nathuni Mian, in that event whose daughter she was, non-compliance of provisions of Order VIII Rule 9 of the Code was an enabling provision and it was directory in nature, and procedural provisions must not be interpreted in a pedantic manner, but in a justice oriented way, and under the circumstances the trial court and learned Single Judge were justified in not drawing adverse inference for non-examination of Sarifan Bibi. The Appeal was concluded by findings of fact based on appraisal of evidence on record.
8. Having scrutinised the submissions of both sides the points for our consideration were whether the plaintiffs' witnesses have satisfied the test of Section 50 of the Act and whether the provisions of Order VIII Rule 9 of the Code have been complied with? If not, its effect, and whether adverse inference could be drawn against plaintiffs-respondents, and vendor Sarifan Bibi even though she was a party as defendant but was not examined.
9. As regards first point, suffice is to say that the learned Single Judge of this Court has appreciated this point and has considered Section 50 of the Act. Section 50 of the Act provides that in order to prove blood relationship the statement of such witnesses would be admissible who have special means of knowledge and the opinion as expressed by the conduct would be admissible. In Dalgovind Pariche v. Nimai Charan AIR 1959 SC 914 it was held that the witnesses called upon to prove the blood relationship must have special means of knowledge and their conduct and outward behaviour would be admissible. In this way, in our opinion Section 50 provides an exceptional way of proving relationship, only by examining the witnesses who have special means of knowledge. Opinion, in common parlence, means something more than hearsay or grossip. It implies belief or conviction.
10. A Division Bench of our Court in Sent Fulkalie v. Nathu Ram AIR 1960 Patna 480 has reached similar conclusions followed Dalgovinda 's case (supra).
11. Janki Kahar v. Bideshi Ram (1991) 1 B.L.J.R. 720 accepted the law declared in Dalgovinda's case (supra).
12. We have persued the statements of P.Ws., examined by plaintiffs-respondents 1 & 2, particularly of P.W. 1 Nijamuddin, who has special means of knowledge about the family of Sarifan Bibi. He stated that Budhan Mian, the father of Sarifan Bibi, and Nathuni Mian and his (P.W.1 Nizamuddin's) grand father were real brothers. He has special means of knowledge. His opinion as expressed through conduct would be relevant under Section 50 of the Evidence Act. He stated that Budhan Mian died leaving his daughter Sarifan Bibi & son Nathuni Mian and Sarifan Bibi has 1/2 share. Similarly we have perused the statements of some other P.Ws. and we are satisfied that their statements fulfil the conditions of Section 50 and they are relevant witnesses and have proved that Sarifan Bibi was sister of Nathuni Mian and daughter of Budhan Mian.
13. Reverting to the next point about the effect of subsequent written statement on behalf of defendants 6 to 10 admitting plaintiffs' case without leave of the court. One thing is to be kept in mind that provision is an enabling one and is directory in nature. It does not provide penal clause about the consequences in case leave of the court was not obtained. We are reminded, of an old Latine Maxim "SUMMUM JUS SUMMA INJURIA", which connotes that extreme law is extreme injury. The rigour of law, untempered by equity is not justice but denial of it. In Owners and Parties interested in M.V. Vali Pro v. Farandeo Lopez Judgments Today (1989) 4 S.C. 10 AIR 1989 S.C 2206, it was ruled by the Apex Court that Rules of procedure are not by themselves an end but that is a means to achieve the end of justice. These Rules are tools forged to achieve justice and are not hurdles to obstruct the path way to justice. Only that construction would be proper which promotes justice and prevent miscarriage by enabling the Court to do justice in myriad situations. In our opinion, nothing has been indicated as to what would happen if leave of the court is not obtained.
14. In our opinion, procedural law is meant to further the ends of justice and not to frustrate it. That interpretations which tends to serve the ends of justice must be preferred. The procedure is the hand maid to justice (See Special Investigation Cell v. Anupam J. Kulkarni, judgment Today (J.T.) (1992) 3 S.C. 366; Des Bandhu Gupta v. N.L. Anand J.T. (1993) (5) S.C. 318.
15. A court is required to consider the provisions of Order VIII Rule 9 of the C.P.C. in a wider perspective and it may be interpreted in a justice oriented way. Taking the instance of a minor, a defendant, represented through his guardian, who was not sincere to the interest of minor and was working with an oblique motive. When minor attains manority and has to file a correct written statement which is obviously contradictory to the earlier written statement filed through guardian, either the Court does not grant permission, or application for leave is not made, and the fresh written statement (contradictory to the earlier one) is filed, can the written statement in such situation be ignored. In other words if written statement is not considered or given effect to simply because no leave of the court was obtained, in that event it would cause great injustice which can not be the object of legislature in enacting Order VIII Rule 9 of the Code.
16. In such situation what is the duty of the Court to act as a mechanic or an architect. We are reminded what Lord Denning has said about the duty of a Judge in similar circumstances, in matter of interpretation:
Law does not stand still. It moves continually. Once this is recognsied, then the task of a Judge is put on a higher plane. He must consciously mould the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick without thought to the over all design. He must be an architect-thinking of the structure as a whole-building for society, a system of law which is strong, durable and just. It is on his work that civilized society depends.
17. Applying this statutory principle, in our opinion, the provision under Order VIII Rule 9 of the Code is directory, even if leave of the Court was not obtained that was of no significance. The court at first instance and the learned Single Judge has correctly considered the amended or fresh written statements in the light of other evidence on record. We do not find any infirmity in the impugned judgment on account of absence of leave under Order VIII Rule 9 of the Code.
18. Nanjan v. Selai and Ors. AIR 1958 Madras 383 relied upon by the learned Counsel for the appellants was not of much assistance. It was a case where subsequent written statement was filed and the mode of its filing was indicated as to how the amended or subsequent written statement could be filed. It was held that if a party wants to file a fresh written statement, he has to file a petition stating the reason why he failed to file it earlier, and what excuse there is for allowing him to file an additional or fresh written statement at that stage. Then other side has to be given an opportunity to oppose the petition and contend that such additional or fresh written statement should not be entertained at this stage. In the instant case the perusal of the order sheet indicates that the defendants-appellants did not raise any objection when amended or fresh written statement was brought on record. The appellant did not challenge the order accepting fresh written statement. This has not caused any prejudice to the appellants nor affected jurisdiction of the court. The impugned judgment could not be set aside or varied, keeping in view the provisions of Section 99 of the Code. Under Section 99 of the Code, it has been provided that even if there is any irregularity in the procedure adopted it can not be a ground for reversal of a decree unless the same affects the merit of the case or jurisdiction of the court. In the instant case we are satisfied that even if there is irregularity in adopting the procedure, it did not affect the merit of the case or jurisdiction of the court. Consequently that itself does not entitle the defendants for reversal of the decree either of the learned Single Judge or the trial court.
19. As regards the last point about drawing an inference under Section 114(g) of the Evidence Act, other evidence on records has been considered and the trial court or learned Single Judge was not bound to draw a presumption or an adverse inference as Sarifan Bibi was not examined, particularly when she was defendant and suit was filed by plaintiffs 1 and 2. We are in agreement with the finding of trial court and learned Single Judge. We find no substance in this submission of the learned Counsel for the appellants.
20. In view of the premises aforesaid and applying the principles of Aristotelian and Baconian reasonings, this Letters Patent Appeal lacks merit and the same is dismissed with no order as to costs.