Andhra Pradesh High Court - Amravati
Isarapu Simhachalam, vs Sidha Nagarathnam, on 5 December, 2024
* HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE SRI JUSTICE NYAPATHY VIJAY
CRP.No.2339 of 2023
% 05.12.2024
# Isarapu Simhachalam, and Others
... Petitioners
Vs.
$ Sidha Nagarathnam and Others
... Respondent
! Counsel for the petitioner: Sri Sri V.V.L.N.Sarma,
! Counsel for the Respondent : Sri G.Venkata Subba Raju
< Gist:
> Head Note:
? Cases referred:
1 2024 (5) ALT 383 (AP)
2 2012 (3) ALT 260
3
(2012) 5 SCC 370
2
APHC010469272023
IN THE HIGH COURT OF ANDHRA
PRADESH
[3460]
AT AMARAVATI
(Special Original Jurisdiction)
THURSDAY ,THE FIFTH DAY OF DECEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION NO: 2339/2023
Between:
Isarapu Simhachalam, and Others ...PETITIONER(S)
AND
Sidha Nagarathnam and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. V V L N SARMA
Counsel for the Respondent(S):
1. G VENKATA SUBBA RAJU
The Court made the following:
3
HON'BLE JUSTICE NYAPATHY VIJAY
C.R.P.No.2339 of 2023
O R D E R:
The present civil revision petition is filed questioning the order dated 24.07.2023 in I.ANo.150 of 2021 in O.S.No.181 of 2016 passed by the Additional Judicial Magistrate of I Class-cum-
Additional Junior Civil Judge, Tuni, East Godavari District.
2. Petitioners are the defendants. The suit was filed by the respondents/plaintiffs for permanent injunction restraining the petitioners from interfering with the suit schedule property. The petitioners filed above I.A.No.150 of 2021 for appointment of Advocate Commissioner. In the affidavit filed in support of the said application, the petitioners filed written statement as well as additional written statement. It is their submission that his father has constructed thatched shed in the year 1992 in about Ac.0.02 cents in Sy.No.333/2 within the boundaries of the plaint schedule property. It is their plea that in the thatched shed, they have been placing their cattle, goat, sheep and hens. The Tetaguta Panchayat also levied tax to the said RCC building in the year 2015 and they have been paying the same.
43. In the year 2020, the petitioners constructed RCC building consisting of four rooms in about Ac.0.04 cents within the boundaries of plaint schedule property and they have been paying electrical charges to the said connection. It was in that context, the application was filed for the Advocate Commissioner to note down the physical features in the schedule property. This application was opposed by the respondents on the ground that the appointment is sought for more collection of evidence, hence sought for rejection of the same. The trial Court, vide impugned order rejected the application on contest. Hence, the civil revision petition.
4. Heard Sri V.V.L.N.Sarma, learned counsel for the petitioners and Sri G.Venkata Subba Raju, learned counsel for the respondents.
5. In support of their contention, learned counsel for the petitioners relied on judgments of this Court in Ramakka v.
Muneppa (died) and another1 and CRP.No.2114 of 2019 and learned counsel for the respondents relied on Thalla Sulochana 1 2024 (5) ALT 383 (AP) 5 v. Thalla Issac and another2 for opposing the claim that the application is filed only for collection of evidence.
6. Having heard the respective counsel, it is a matter of curiosity as to why the plaintiffs/respondents are opposing the appointment of Advocate Commissioner. Merely because the defendants/petitioners seek for appointment of Advocate Commissioner, the same per se does not mean that the report would be in favor of the defendants/petitioners. If the structures as pleaded by the petitioners are in existence and the Advocate Commissioner records the same, a lot of judicial time could be saved and the Court would be better informed about the status of affairs at the ground level.
7. The opposition on the ground that the appointment of Advocate Commissioner amounts to collection of evidence, this Court is of the opinion that the Advocate Commissioner is not appointed for collection of evidence but for gathering the truth or could be termed as a pursuit of truth by the Court, which is the core purpose of the Court. The procedural laws are meant to aid the discovery of truth for Court to render apt justice, but the 2 2012 (3) ALT 260 6 procedural law should not be used as a hindrance to the pursuit of truth. Such a proactive approach by Courts would help in mitigating speculative litigation, save judicial time and the contesting parties would be relieved of the unwanted long trials.
8. The Hon'ble supreme Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira3, called upon the Courts not to be a mute witness and to take up a proactive role in pursuing truth and administering justice. The Courts were called upon to liberally use the power under Section 30 CPC for this purpose. Though, large, the paragraphs 32 to 52 thereof are extracted below highlighting the relevant for ready reference;
" Truth as guiding star in the judicial process
32. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies.
33. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.3
(2012) 5 SCC 370 7
34. In Mohanlal Shamji Soni v. Union of India this Court observed that in such a situation a question that arises for consideration is whether the Presiding Officer of a court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well-
accepted and settled principle that a court must discharge its statutory functions--whether discretionary or obligatory--according to law in dispensing justice because it is the duty of a court not only to do justice but also to ensure that justice is being done.
35. What people expect is that the court should discharge its obligation to find out where in fact the truth lies. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.
36. In Ritesh Tewari v. State of U.P.10 this Court reproduced an oft-quoted quotation which reads as under: (SCC p. 687, para 37) "37. ... Every trial is voyage of discovery in which truth is the quest."
(emphasis in original) This Court observed that the "power is to be exercised with an object to subserve the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold the truth."
37. Lord Denning in Jones v. National Coal Board11 has observed that: (QB p. 63) "... In the system of trial [that we] evolved in this country, the Judge sits to hear and determine the 8 issues raised by the parties, not to conduct an investigation or examination on behalf of [the] society at large, as happens, we believe, in some foreign countries."
38. Certainly, the above is not true of the Indian judicial system. A Judge in the Indian system has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.
39. Lord Denning further observed in Jones11 that:
(QB p. 64) "... It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth:"
40. World over, modern procedural codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimised.
41. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and Judges.
42. Section 30 CPC reads as under:
"30. Power to order discovery and the like.-- Subject to such conditions and limitations as may be 9 prescribed, the court may, at any time, either of its own motion or on the application of any party,--
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
(b) issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit."
43. "Satyameva Jayate" (literally "truth stands invincible") is a mantra from the ancient scripture Mundaka Upanishad. Upon Independence of India, it was adopted as the national motto of India. It is inscribed in Devnagri script at the base of the national emblem. The meaning of the full mantra is as follows:
"Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of truth resides."
44. Malimath Committee on Judicial Reforms heavily relied on the fact that in discovering truth, the Judges of all courts need to play an active role. The Committee observed thus:
"2.2. ... In the adversarial system truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the 10 defence before a neutral Judge. The Judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt [The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and law and order in the society.]* and gives the benefit of doubt to the accused. It is the parties that determine the scope of dispute and decide largely, autonomously and in a selective manner on the evidence that they decide to present to the court. The trial is oral, continuous and confrontational. The parties use cross-examination of witnesses to undermine the opposing case and to discover information the other side has not brought out. The Judge in his anxiety to maintain his position of neutrality never takes any initiative to discover truth. He does not correct the aberrations in the investigation or in the matter of production of evidence before court....
* * * 2.15. The adversarial system lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the inquisitorial system. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judge does not bother if relevant evidence is not produced and plays a passive role as if he has no duty to search for truth....
* * * 2.16.9. Truth being the cherished ideal and ethos of India, pursuit of truth should be the guiding star of the criminal justice system. For justice to be done truth must prevail. It is truth that must protect the 11 innocent and it is truth that must be the basis to punish the guilty. Truth is the very soul of justice. Therefore truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. It is of seminal importance to inject vitality into our system if we have to regain the lost confidence of the people. Concern for and duty to seek truth should not become the limited concern of the courts. It should become the paramount duty of everyone to assist the court in its quest for truth."
45. In Chandra Shashi v. Anil Kumar Verma12 to enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in courts when they would find that truth alone triumphs in the courts.
46. Truth has been the foundation of other judicial systems, such as, the United States of America, the United Kingdom and other countries.
47. In Giles v. Maryland13, the US Supreme Court, in ruling on the conduct of prosecution in suppressing evidence favourable to the defendants and use of perjured testimony held that such rules existed for a purpose, as a necessary component of the search for truth and justice that Judges, like prosecutors must undertake. It further held that the State's obligation under the due process clause "is not to convict, but to see that so far as possible, truth emerges".
1248. The obligation to pursue truth has been carried to extremes. Thus, in United States v. Havens14 it was held that the Government may use illegally obtained evidence to impeach a defendant's fraudulent statements during cross-examination for the purpose of seeking justice, for the purpose of "arriving at the truth, which is a fundamental goal of our legal system".
49. Justice Cardozo in his widely read and appreciated book The Nature of the Judicial Process discusses the role of the Judges. The relevant part is reproduced as under:
"There has been a certain lack of candour, 'in much of the discussion of the theme [of Judges' humanity], or rather perhaps in the refusal to discuss it, as if Judges must lose respect and confidence by the reminder that they are subject to human limitations'. I do not doubt the grandeur of conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces. Nonetheless, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do."
50. Aharon Barak, President of the Israeli Supreme Court from 1995 to 2006 takes the position that:
"For issues in which stability is actually more important than the substance of the solution--and there are many such cases--I will join the majority, without restating my dissent each time. Only when 13 my dissenting opinion reflects an issue that is central for me--that goes to the core of my role as a Judge-- will I not capitulate, and will I continue to restate my dissenting opinion: 'Truth or stability--truth is preferable'.
* * * On the contrary, public confidence means ruling according to the law and according to the Judge's conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria. Public confidence is ensured by the recognition that the Judge is doing justice within the framework of the law and its provisions. Judges must act--inside and outside the court--in a manner that preserves public confidence in them. They must understand that judging is not merely a job but a way of life. It is a way of life that does not include the pursuit of material wealth or publicity; it is a way of life based on spiritual wealth; it is a way of life that includes an objective and impartial search for truth."15
51. In the administration of justice, Judges and lawyers play equal roles. Like Judges, lawyers also must ensure that truth triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and Judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.
149. The general approach of uniform yardstick in all cases is not helping the civil Courts to render quick and smooth disposal of the suits. In a suit for bare injunction as in this case, facts could be gathered at the ground level by the civil Court by appointment of Advocate Commissioner for purposes mentioned in Section 30 CPC as observed above by Hon'ble Supreme Court and thereafter, the rights of the contesting parties could be determined. In the facts of this case, if the structures are there in the scheduled property and everyone in the village knows this fact, it would look very odd for a trial to be conducted to ascertain this known and visible fact.
10. Therefore, the order of the trial Court dated 24.07.2023 is set aside and the civil revision petition is allowed. No order as to costs. As a sequel thereto, the miscellaneous petitions, if any, pending in this Petition shall stand closed.
___________________
NYAPATHY VIJAY, J
Date: .12.2024
KLP