Gauhati High Court
Gulena Begum & 2 Ors vs Azad Ali & 7 Ors on 12 June, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP 89 of 2017
GULENA BEGUM & 2 ORS. .....Petitioners
-Versus-
AZAD ALI & 7 ORS. .....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. S. Ali, Mr. B. Barman, : Ms. J. Begum, Mr. A. Ikbal.
Advocates for the Respondents : Mr. M. Choudhury, Sr. Adv.
: Mr. M. Mahanta.
Date of hearing : 05.06.2017.
Date of judgment and order : 12.06.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. S. Ali, the learned counsel for the petitioner and Mr. M. Choudhury, the learned Senior Counsel assisted by Mr. M. Mahanta, appearing for the respondent.
2) The challenge in the present application under Article 227 of the Constitution of India read with section 151 of the Civil Procedure Code (hereinafter referred to as "the Code"), is the order dated 14.02.2017 passed by the learned Munsiff No.2, Kamrup (Metropolitan), Guwahati, in Title Suit No. 123/2009, by which the prayer made by the petitioners to submit written statement and to allow them to adduce evidence along with fresh exhibits was rejected.
CRP 89/2017 Page 1 of 153) Owing to the nature of challenge, I do not deem it fit to burden this judgment with the pleadings of the parties. It would be sufficient to state that the petitioners herein are substituted legal representatives of the defendant No.1, namely, Md. Faizur Rahman, who had died on 03.02.2016. During his life time, Ahidur Rahman, who the petitioner No.3 herein had submitted his evidence- on- affidavit as the supporting witness on behalf of the defendant No.1.
4) After the death of the defendant No.1, the petitioners were not given any opportunity by the learned trial court to file their written statement. Hence, by filing petition No. 3425 dated 03.12.2016, the petitioners prayed for allowing them to file their written statement and then to adduce their evidence. It was further prayed that the petitioner No.3 herein i.e. defendant No.1(c) may be permitted to withdraw his evidence on affidavit with liberty to file the same afresh along with the exhibits. The respondent/ plaintiff filed his written objection to the said petition.
5) The matter arising out of the said petition dated 03.12.2016 was heard by the learned trial court and by order dated 14.02.2017, the learned trial court rejected the said petition. While rejecting the prayers made by the petitioners, the learned trial court observed that by order dated 26.04.2016, the defendants No. 1(a), 1(b) and 1(c) were substituted in place of the deceased defendant and thereafter, steps were taken in respect of the substituted defendant No.1(d) and 1(e) and since 04.10.2016, the case was proceeding ex parte against the defendants No.1(d) and 1(e). But, the said defendants did not make any prayer to file their written statement or evidence. On the said grounds, the plea of the petitioners that they did not get any opportunity to file written statement was not sustainable, but they were given enough opportunity to to submit before the Court or to submit written statement, but they did not do so and accordingly, the suit proceeded for cross examination of official witnesses on 22.11.2016. The learned trial court held that the Civil Procedure Code or in the Evidence Act were silent about the withdrawal of evidence-on- affidavit filed by CRP 89/2017 Page 2 of 15 any party at their own convenience and, as such, the prayer of defendant No.1(c) to withdraw his evidence was rejected and the evidence-on- affidavit filed by the original defendant was expunged as he had died. Thus, the petitoin was rejected.
6) The learned counsel for the petitioners has submitted that as per the provisions of Order XXII Rule 4(2), any person made a party is entitled to make any defence appropriate to his legal character as legal representative of the deceased defendant. Hence, the impugned order was not sustainable both on facts and in law. It was submitted that in the written objection filed by the respondent/ plaintiff before the learned trial court as well as in the impugned order, there is no reference to any order by virtue of which any chance was given to the petitioners to submit their written statement. Thus, there was a incorrect finding in the said impugned order to the effect that the petitioners were given enough opportunity to submit before the Court or to submit written statement, but they did not do so and accordingly, the suit proceeded for cross examination of official witnesses on 22.11.2016. It is stated that in a civil suit, a party is not entitled to file his written statement at any time without an order in writing for the same and, as such, when no order was forthcoming from the learned Trial Court to enable the petitioners to file written statement, they were compelled to file petition No. 3425 dated 03.12.2016 to allow them to file their written statement.
7) The learned counsel for the petitioners further submit that when the predecessor-in- interest of the petitioners was alive, then the petitioner No.3 [defendant No.1(c)] had filed his evidence- on - affidavit, which was not in his status as one of the defendant in the suit, but as one of the listed witness in the case, for which he was only a witness supporting the original defendant. It is further submitted that the original defendant had proved all the exhibits, but as the learned trial court had expunged the said evidence owing to the death of the original defendants. Hence, unless the petitioners are allowed to file their fresh CRP 89/2017 Page 3 of 15 evidence- on- affidavit, they will suffer absolute injustice and they would be non- suited merely on the ground that the defendant's witnesses did not prove any document. Hence, the present case was a fit case to set aside the impugned order and to allow the prayers made by the petitioners before the learned trial court to submit their written statement and to submit fresh evidence.
8) In support of his argument, the learned counsel for the petitioners has relied on the case of Sumtibai & Ors. V. Paras Finance Co. & Ors., reported in (2007) 10 SCC 82.
9) Per contra, the learned Senior Counsel for the respondent has submitted that in the present case in hand, the petitioners had got themselves substituted in the suit as a legal representative and, as such, they were required to proceed with the case from the stage where the case was a the time the defendant died. It is submitted that if the petitioners had to raise any individual point which the deceased defendant could not have raised, he must get himself impleaded as defendant in his personal capacity or he must challenge the decree in a separate suit. Thus, if the petitioners wanted to assert their own right, they ought to have impleaded themselves as the defendants under Order 1 Rule 10(2) of the Code. In support of his contentions, the learned Senior Counsel for the respondents has placed reliance on the case of Vidywati V. Man Mohan & Ors., reported in (1995) 5 SCC 431.
10) I have gone through the material available on record as well as perused the impugned order. From the statements made in the revision petition, it is the specific case of the petitioners that on 02.02.2015, the original defendant had submitted his evidence-on- affidavit and exhibited the documents. The petitioner No.3 also submitted his evidence-on- affidavit as DW-2 to support the original defendant. The petitioner No.3 was not a listed witness and, as such, petition No. 260/15 was also filed to accept his evidence, which was allowed by order dated 22.06.2015. Although the original defendant (since dead) and the CRP 89/2017 Page 4 of 15 petitioner No.3 had filed their evidence-on- affidavit on 02.02.2015, the learned trial court had fixed the case for examination of official witness. After 6 official witnesses were examined and one more remained to be examined, the original defendant had died on 03.02.2016, leaving behind 5 legal heirs/ representatives. On his death, the counsel for the predecessor- in- interest of the petitioners informed the learned trial court about his death and disclosed the names of all 5 legal representatives/ heirs. On the next date, i.e. on 28.03.2016, the petitioners appeared and prayed for substitution and the case was fixed on 06.04.2016 for objection by the plainitff and as no objection was submitted, the substitution was allowed. However, on 06.04.2016, the plaintiff also submitted another petition for substitution, which was fixed for objection hearing on 20.04.2016.
11) The events on and from 20.04.2016 is on 20.04.2016, petition No. 998/16 filed by the plaintiff was taken up for hearing and the petitioner's side had not submitted any objection against the said petition and accordingly, the following date was fixed on 26.04.2016 for order on the said petition. By order dated 26.04.2016, the said petition No. 998/16 was allowed. The petitioner No. 1 [i.e. Defendant No. 1(a)] appeared on that day. Thereafter, the plaintiff was directed to take steps to serve notice upon Defendant No. 1(d) & 1(e) and the case was fixed on 03.06.2016 for appearance of the said defendants. On 03.06.2016, notice was issued on the Defendants No. 1(d) and 1(e). As plaintiff had taken steps, the suit was then fixed on 11.07.2016 for appearance of Defendant No. 1(d) and 1(e). By order dated 11.07.2016, the plaintiff was again directed to take steps for service of notice on the Defendant No. 1(d) and 1(e), fixing the suit for their appearance on 30.07.2016. By order dated 30.07.2016, steps taken for service of notice were found lying in the record and a direction was passed to issue the same to the Defendants No. 1(d) and 1(e) and the suit was fixed on 30.08.2016 for the appearance of the said defendants. Ultimately, by order dated 04.10.2016, the suit was ordered to proceed ex parte against the defendant No. 1(d) and 1(e) as the said defendants had failed to appear despite service of notice upon them. By the same order dated 04.10.2016, it was also CRP 89/2017 Page 5 of 15 directed that steps be taken in respect of the official witness i.e. Additional Deputy Commissioner, Kamrup (Metropolitan). However, on the date fixed i.e. on 22.11.2011 the said official witness did not appear in spite of service of notice and accordingly, the petitioners was directed to issue reminder on the said official witness for appearing on 03.12.2016. On 03.12.2016, the said official witness made an application with a prayer for adjournment seeking some more time to produce the required document and such prayer was allowed.
12) Thereafter, the petitioners had filed petition No. 3425/2016 on 03.12.2016 with a prayer to allow them to file their written statement and thereafter to adduce evidence on affidavit afresh and further allow to withdraw the evidence on affidavit of the petitioner No.3 (Defendant No.1-C therein) with liberty to file the same afresh along with the exhibits.
13) Thereafter, the suit was fixed on 22.12.2016 for objection hearing on petition No. 3425/2016 dated 03.12.2016 and for examination of official witness. The official witness i.e. the Additional Deputy Commissioner, Kamrup (Metropolitan) was examined, cross-examined and discharged on the said date. Thereafter, the plaintiff in the suit sought time to file objection against the said petition. The said prayer was allowed fixing the next date on 25.01.2017 for filing objection against the said petition. The suit was then fixed on 09.02.2017 for hearing on the said petition No. 3426/16. The matter was heard on 09.02.2017. After hearing both the sides, the suit was fixed on 14.02.2017 for orders on the said petition.
14) Thus, from the date-wise progress of the suit as narrated above, it leaves no room for doubt that although the petitioners were negligent in not making any prayer to file their written statement, but the undeniable reality is that the learned trial court did not pass any order, directing the petitioners to submit their written statement.
CRP 89/2017 Page 6 of 1515) On the perusal of the case of Vidyawati (supra), in paragraph 1 of the said case it is mentioned that one Man Mohan was impleaded to represent the estate of Brij Mohan Kapoor. It is further stated that "When they sought to file additional written statement claiming title to and interest in the property under the a will said to have been executed by Smt. Champawati, the petition was dismissed by trial court in Suit No. 418 of 1984 by order dated 6-8-1994 holding that "it is not open to the present applicant to assert her own individual or hostile title to the suit". It was held that if a legal representative wants to raise any individual point which the deceased party could not have raised, he must get himself impleaded in his personal capacity or he must challenge the decree in a separate suit. In that view, she was not permitted to file the additional written statement." The said finding was upheld by the Hon'ble Apex Court on the basis of finding recorded in paragraph 3 thereof, wherein it was observed by the Hon'ble Supreme Court that "the petitioner's claim of right, title and interest entirely rests on the will said to have been executed by Champawati in favour of the first defendant and herself. It is now admitted across the Bar that the first defendant had life interest created under the will executed by Champawati. Therefore, the said interest is coterminous with his demise." These passages are indicative of the fact that the written statement must have come into record and only then it was possible for the courts including the Hon'ble Supreme Court to arrive at a finding as to what plea was contained in the written statement of the substituted legal representative.
16) In view of the ratio laid down in the case of Vidyawati (supra), which has been relied upon by the learned Senior Counsel for the respondent, I have no hesitation to hold that in the present case in hand, unless any written statement of the petitioners is allowed to come on record, it is not possible for anyone to guess what defence would be taken or to arrive at a finding that the defence, which is not even raised, was not appropriate to their character as legal representative of the deceased defendant.
CRP 89/2017 Page 7 of 1517) In respect of my the above finding, I find support from the same judgment of Vidyawati (supra), the relevant extract thereof is as under:-
"3. It is seen that the petitioner's claim of right, title and interest entirely rests on the will said to have been executed by Champawati in favour of the first defendant and herself. It is now admitted across the Bar that the first defendant had life interest created under the will executed by Champawati. Therefore, the said interest is coterminous with his demise. Whether the petitioner has independent right, title and interest dehors the claim of the first defendant is a matter to be gone into at a later proceedings. It is true that when the petitioner was impleaded as a party-defendant, all right under Order 22, Rule 4(2) and defences available to the deceased defendant become available to her. In addition, if the petitioner had any independent right, title or interest in the property then she had to get herself impleaded in the suit as a party defendant in which event she could set up her own independent right, title and interest, to resist the claim made by the plaintiff or challenge the decree that may be passed in the suit. This is the view the Court below has taken rightly.
4. This Court in Bal Kishan v. Om Parkash, [(1986) 4 SCC 155:
AIR 1986 SC 1952] has said thus:
"The sub-rule (2) of Rule 4 of Order 22 authorizes the legal representative of a deceased defendant to file an additional written statement or statement of objections raising all pleas which the deceased defendant had or could have raised except those which were personal to the deceased-defendant or respondent."
5. The same view was expressed in Jagdish Chander Chatterjee v. Sri Kishan [(1972) 2 SCC 461: (1973) I SCR 850], wherein this Court said:
CRP 89/2017 Page 8 of 15"The legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representative from setting up also their own independent title, in which case there could be no objection to the Court impleading them not merely as the LRs. of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the title."
18) In this connection, I also find support from the case of Sumtibai & Ors. (supra). The relevant passages of the said judgment are extracted as under:-
"7. Before adverting to the question involved in this case, it may be noted that in the registered sale deed dated 12.8.1960 the shop in dispute has been mentioned and the sale was shown in favour of Kapoor Chand and his sons, Narainlal, Devilal and Pukhraj. Hence, the registered sale deed itself shows that the purchaser was not Kapoor Chand alone, but also his sons as co-owners. Hence, prima facie, it seems that the sons of Kapoor Chand are also co-owners of the property in dispute. However, we are not expressing any final opinion on the question whether they are co-owners as that would be decided in the suit. But we are certainly of the opinion that the legal representatives of late Kapoor Chand have a right to take this defence by way of filing an additional written statement and adduce evidence in the suit. Whether this defence is accepted or not, of course, is for the trial court to decide. Hence, in our opinion, the courts below erred CRP 89/2017 Page 9 of 15 in law in rejecting the applications of the heirs of Kapoor Chand to file an additional written statement.
8. Every party in a case has a right to file a written statement. This is in accordance with natural justice. The Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing. The appellants in the present case have already been made parties in the suit, but it would be strange if they are not allowed to take a defence. In our opinion, Order 22 Rule 4(2) CPC cannot be construed in the manner suggested by learned counsel for the respondent.
14. In view of the aforesaid decisions we are of the opinion that Kasturi case [(2005) 6 SCC 733] is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced.
15. Also, merely because some applications have been rejected earlier it does not mean that the legal representatives of late Kapoor Chand should not be allowed to file an additional written statement. In fact, no useful purpose would be served by merely allowing these legal representatives to be impleaded but not allowing them to file an additional written statement. In our opinion, this will clearly violate natural justice."
19) Thus, in terms of the ratio of the above two cited cases, while the petitioners as substituted legal representatives have a right to file written CRP 89/2017 Page 10 of 15 statement, it would, however, be open for the learned Trial Court to decide whether the defence so taken by the petitioners is acceptable or not in terms of the provisions of Order XXII Rule 4(2) of the Code, or in order words to decide whether the defence so taken is appropriate to their legal character as legal representatives.
20) Coming to the next question as to whether the petitioner No.3 i.e. defendant No.1(c) was entitled to file evidence, it is seen that it is not disputed that during the life time of the original defendant, the said original defendant was the principal witness as one of the party and had exhibited all documents. Therefore, the defendant No.1(c) necessarily had to be the supporting witness. Now, it is also an accepted position from the discussion made herein before that the plaintiff's side did not get any opportunity to cross examine the said DW-1, as such, the evidence tendered by the DW-1 (since died) cannot be sustained and the evidence of the DW-1, who had died before the plaintiff's side got any opportunity to cross examine him, has been rightly expunged by the learned trial court by the impugned order dated 14.02.2017. The said part of the impugned judgment is upheld.
21) In my opinion, in view of the provisions of second proviso to section 33 of the Evidence Act, 1872, an evidence of a dead witness, in respect of whom the adverse party did not get any opportunity to cross examine, cannot be held to be relevant. Thus, a substituted legal representative, who has stepped into the shoes of the dead defendant must be given the right to prove his/their documents and mark those documents as exhibits, otherwise, there will be an inevitable failure of justice to such substituted legal representative, because the defence will get wiped-out by lack of any evidence on expunging of the evidence of the deceased party, i.e. evidence of DW-1 in the present case in hand.
22) It would be relevant to quote the provisions of section 33 of the Evidence Act, 19872 for ready reference:-
CRP 89/2017 Page 11 of 15"Section 33.- R elevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided--
that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.--A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."
23) Now coming to the connected issue as to whether the evidence can be withdrawn. In this connection, it is seen that a defendant is not in the same footing as the plaintiff in a suit. A defendant is permitted to take up inconsistent pleadings, which is not available to a plaintiff. Moreover, it is no longer res- integra that an admission made by a party may be withdrawn or may be explained away. If anyone requires an authority on the same, the case of Panchdeo Narain Srivastava V. K. Jyoti Sahay, reported in AIR 1983 SC 462 may be referred to. In paragraph 3 thereof, it is stated as "..... An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be CRP 89/2017 Page 12 of 15 said that by amendment an admission of fact cannot be withdrawn." Thus, if an admission made by a party can be permitted to be withdrawn, there is no reason for refusing admissions or statements made in evidence cannot be withdrawn.
24) In this connection, I find support from the judgment of the Hon'ble Apex Court in the case of Baldev Singh V. Manohar, reported in (2006) 6 SCC 498, it was held in paragraph 14 as follows -
"14. .... It is true in the original written statement, a statement has been made that it is the defendant No.1/appellant No.1 is the owner and in continuous possession of the suit property but in our view, the powers of the Court are wide enough to permit amendment of the written statement by incorporating an alternative plea of ownership in the application for amendment of the written statement. That apart, in our view, the facts stated in the application for amendment were in fact an elaboration of the defence case. Accordingly, we are of the view that the High Court as well as the Trial Court had erred in rejecting the application for amendment of the written statement on the ground that in the event such amendment was allowed, it would take away some admissions made by the defendants/appellants in their written statement. That apart, in the case of Estralla Rubber vs. Dass Estate (P) Ltd. [(2001) 8 SCC 97], this Court held that even there was some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement. That apart, mere delay of three years in filing the application for amendment of the written statement could not be a ground for rejection of the same when no serious prejudice is shown to have been caused to the plaintiff/respondent No.1 so as to take away any accrued right."CRP 89/2017 Page 13 of 15
25) In the present case in hand, the evidence tendered by the present Defendant No. 1(c) on 02.02.2015 was in his status of a mere witness. But on and from 06.04.2016, before he was cross examined, his status got changed from a mere witness to the status of a defendant in his character as a substituted legal representative of the deceased original defendant, whose evidence stood expunged. Thus, in my opinion, this is an exceptional case, where by invoking the inherent powers under section 151 of the Code, the defendant No.1(c) could have been permitted to (i) either withdraw his evidence and tender afresh evidence, or (ii) permit the said defendant No.1(c) to file additional evidence. In my opinion, procedural law is a handmaid of justice. A civil court always retain inherent power to ensure that no injustice is suffered by any party, like the present case in hand, where the evidence of original defendant as DW-1 stands expunged on his death and his supporting witness, i.e. DW-2 steps into the shoes of original defendant as his legal representative is not permitted to prove the documents, which were not proved by him, but by DW-1. The evidence of DW-1, as it was expunged, has lost its relevancy and cannot be saved by operation of section 33 of the Evidence Act. This situation will surely lead to denial of justice to the defendant No.1(c), as his defence would surely and without any doubt fail. Under the circumstances, by not allowing the defendant No.1(c) to tender his evidence, the impugned order is vitiated by failure to exercise jurisdiction vested in the court by law and, as such, is liable to be interfered with for the purpose of ends of justice.
26) Nonetheless, this is not the only reason why I have formed an opinion to interfere in this issue. In the present case, by virtue of this order, the defendant No.1(c) has become entitled to file his written statement. Hence, right will be vested on him to lead evidence to prove his defence. Hence, the impugned order, so far it relates to refusing him to withdraw his evidence and refusing to allow him to file a fresh evidence, has been rendered otiose or infructuous, which requires no interference but only a clarification, as indicated above, in my opinion, will meet the ends of justice. Hence, it is clarified that if CRP 89/2017 Page 14 of 15 the defendant No.1(c) files his written statement, it is needless to say that he would also have a right to adduce evidence in support of his pleadings.
27) In view of above, in my opinion, the impugned order dated 14.02.2017, passed by the learned trial court is contrary to the principles of law well settled by the Hon'ble Apex Court in the two cases cited above. Hence, the said order in so far as it relates to (i) rejection of the prayer of the petitioners [i.e. defendants No. 1(a), 1(b) and 1(c)], and (ii) rejection of the prayer of the petitioners to allow the defendant No.1(c) to withdraw his evidence and file it afresh with exhibits, is held to be vitiated by jurisdictional error, which is required to be corrected by this Court in exercise of superintending jurisdiction of this Court. The order expunging the evidence of DW-1 (since dead) is not interfered with. Accordingly, the said impugned order dated 14.02.2017 passed by the learned Civil Judge Munsiff No.2, Kamrup (Metropolitan), Guwahati, in Title Suit No. 123/2008 is set aside. The said learned Court may now allow the petitioners herein i.e. defendants No.1(a), 1(b) and 1(c) to submit their written statement. Needless to add that if any written statement is filed by any of the substituted legal representative of the original defendant including the defendant No.1(c), they would be entitled to adduce evidence.
28) As a result, the present application stands allowed in terms as indicated above. The parties are left to bear their own cost.
29) The parties are directed to appear before the learned Court of Munsiff No.2, Kamrup (Metropolitan), Guwahati, on 03.07.2017 to seek further instructions from the said learned Court, for which no other formal notice for appearance is required to be issued.
JUDGE Mkumar.
CRP 89/2017 Page 15 of 15