Orissa High Court
Sarat Chandra Mohapatra vs Narasingha Mohapatra And Another on 3 February, 2017
Equivalent citations: 2017 AIR CC 998 (ORI), (2017) 172 ALLINDCAS 782 (ORI), (2017) 3 CIVILCOURTC 65, (2017) 2 CLR 250 (ORI), (2017) 1 ORISSA LR 633
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
CMP No.761 of 2016
In the matter of an application under Article 227 of the Constitution
of India.
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Sarat Chandra Mohapatra .... Petitioner
Versus
Narasingha Mohapatra & another .... Opposite parties
For Petitioner ... Mr. A.K. Parija, Sr. Advocate,
Mr. V. Mohapatra, Advocate
For Opp. Parties ... Mr. A. Mohanty, Sr. Advocate,
Miss L. Pradhan, Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 25.01.2017 : Date of judgment: 03.02.2017
Dr. A.K.Rath, J This petition challenges the order dated 16.4.2016
passed by the learned Civil Judge (Senior Division), Puri in C.S.
No.495 of 2012. By the said order, learned trial court rejected the
applications of the plaintiff to examine him and to prove the
documents after closure of evidence.
2. Since the petition is to be disposed of on a short point,
the facts need not be stated in detail. Suffice it to say that Kunimani
Mohapatra, mother of the plaintiff, instituted C.S. No.495 of 2012 in
the court of the learned Civil Judge (Senior Division), Puri for
declaration of right, title and interest, cancellation of sale deed and
permanent injunction impleading opposite parties as defendants.
2
During pendency of the suit, she died, whereafter, the petitioner was
substituted. After closure of evidence from both the sides, on
2.2.2015the plaintiff filed two applications seeking leave of the court to file documents and to mark the same as exhibits. The defendants filed objections to the same. By order dated 12.02.2015, learned trial court rejected the applications. Thereafter, he filed CMP No.227 of 2015 before this Court. The same was listed on 7.12.2015 before a Bench of this Court. In course of hearing, learned counsel for the petitioner sought liberty of the Court to raise the said point at the appellate stage and to withdraw the petition. Accordingly, the petition was withdrawn. While the matter stood thus, on 21.3.2016 the plaintiff filed two applications along with certain documents seeking leave of the Court to accept the same and lead evidence to prove those documents. The defendants filed objection to the same. Learned trial court assigned the following reasons and rejected the petition.
"....Taking into account their submissions it is noticed that by virtue of order Dtd.12.02.15 a detailed analysis has been made with regard to all the documents filed by the substituted plaintiff. Since a detailed order has been passed after due reasoning, for rejection of the petition seeking permission of the court to mark and to exhibit the same, I do not find any further plausible reason to allow the present petition as a previous petition has already been rejected on merit by this very court. Accordingly, both the petitions dtd.21.3.16 stands rejected being devoid of any merit. Accordingly, the petitions filed by the substituted plaintiff to examine himself and to lead evidence stands rejected. Similarly the petition seeking leave of the Court to file documents as per list on 21.03.16 also stands rejected as it will certainly cause more irreparable loss to the defendant who will not be in a position to cross examine the original plaintiff with respect to those documents, as she is already dead. Moreover, these documents have been filed at the stage of argument i.e. at the fag end of the trial just to patch up the lacunae..."3
3. Heard Mr.Ashok Parija, learned Senior Advocate along with Mr.V. Mohapatra, learned counsel for the petitioner and Mr.Ashok Mohanty, learned Senior Advocate along with Miss. L. Pradhan, learned counsel for the opposite parties.
4. Mr. Parija, learned Senior Advocate for the petitioner, submitted that the court, at any stage of the suit, may recall any witness and may put the questions to him. The court may, in exercise of its inherent power under Section 151 CPC, permit the production of such evidence if it is relevant and necessary in the interest of justice. If a document is filed in late and the party assigns the reasons for its non-production, the court has to be satisfied that the explanation offered by the party is satisfactory and the documents are relevant. He submitted that the learned trial court has rejected the petition on the ground that the earlier application of the plaintiff was rejected. Rejection of earlier application, per se, is not a ground to consider the application on merit. He further submitted that some of the documents are public documents and needs no formal proof. He relied on the decision of the apex Court in the case of K. K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275.
5. Per contra, Mr. Mohanty, learned Senior Advocate for the opposite parties, submitted that after closure of evidence, two applications were filed seeking same relief. The same having been rejected, the petitioner filed CMP No.227 of 2015 before this Court. Subsequently, he withdrew the same. For the self-same relief, again two petitions have been filed without assigning any valid reason. The petitions have been filed to protract the litigation. No reason has been assigned as to why those documents have not been tendered into evidence, when the plaintiff was examined. Learned trial court has rightly rejected the petitions. He relied on the decision of the 4 Privy Council in the case of Kanda and others v. Waghu, AIR (37) 1950 PC 68 and K. K. Velusamy (supra).
6. Order 7 Rule 14 CPC provides for production of document on which plaintiff sues or relies. Sub-Rule (3) of Rule 14 of Order 7 CPC provides that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
Order 13 Rule 1 CPC provides that the parties or their pleader shall produce, on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with the plaint or written statement. The Court had a specific provision in 18 Rule 17A CPC for production of evidence not previously known or which could not be produced despite due diligence. The said provision was deleted with effect from 1.7.2002.
7. In Kanda (supra), the Privy Council held that when it is a matter of admitting public records at a late stage, the Court has a discretion, and while generally speaking it will be a wise exercise of the discretion to admit such evidence, the question must be decided in each case in the light of the particular circumstances.
8. In K. K. Velusamy (supra), the apex Court in paragraphs 9 to 14 held as follows;
"9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate 5 cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate)
10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.
11. 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 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.
12. 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. State of UP, Manohar Lal Chopra v. Seth Hiralal, Arjun Singh v. Mohindra Kumar, Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava, Nain Singh v. Koonwarjee, Newabganj Sugar Mills Co. Ltd. v. Union of 6 India, Jaipur Mineral Development Syndicate v. CIT, National Institute of Mental Health & Neuro Sciences v. C. Parameshwara and Vinod Seth v. Devinder Bajaj]. 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 by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in 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 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 in 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.7
(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.
13. 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 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. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose."
9. Reverting to the facts of the case at hand and keeping in view the aforesaid principles, this Court finds that in the application for production of documents, it is stated that the documents were kept in an old trunk of the deceased plaintiff. The plaintiff could 8 trace those documents very recently and the same are relevant for final and complete adjudication of dispute between the parties.
10. During pendency of the suit, the mother of the plaintiff died. Thereafter, her son-present plaintiff has been substituted. Number of witnesses have been examined on his behalf including himself. The defendants have also examined witnesses. In course of trial, both the parties have exhibited number of documents. Evidence from both the sides is closed. The plaintiff has filed two applications. By a detailed order dated 12.2.2015, learned trial court rejected the petition. Assailing the said order, he filed CMP No.227 of 2015 before this Court. For the reasons best known to him, he withdrew the same seeking leave of the Court to raise the issue in appeal. Thereafter, two applications have been filed seeking the same relief. The petitions also do not disclose the date on which the plaintiff could trace the documents from the old trunk. No reason has been assigned as to why the old trunk was not opened before commencement of trial. Using the word 'recently' is not suffice. Ignorance of the plaintiff would not provide sufficient excuse for the delay in making the application. Section 151 CPC cannot be used for re-opening the evidence or recalling the witness at the sweet will of the plaintiff after closure of evidence, without any valid cause. No good cause was shown to the satisfaction of the Court for not filing the documents on or before the settlement of issues. The object of Order 13 Rule 1 CPC is to lay down the stage when a party shall file documentary evidence so that each known on what document the other seeks to rely and get ready for trial. The principle of res judicata in stricto sensu does not apply in an interlocutory proceeding. But then, repeated applications for the self-same relief made on the same basis amount to abuse of process of the court. As has been proclaimed by the apex Court in Dr. Buddi Kota Subbaro v.
9K. Parasaran and others, AIR 1996 SC 2687 no litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. The applications have been filed to protract the litigation and are ruse.
11. In the wake of the aforesaid, the petition, sans merit, deserves dismissal. Accordingly, the same is dismissed.
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DR. A.K.RATH, J.
Orissa High Court, Cuttack.
Dated 3rd February, 2017/Pradeep.
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