Orissa High Court
Bishnupriya Devi vs Ashoka Crokeries Ltd on 21 August, 2013
Author: S.K.Mishra
Bench: S.K.Mishra
HIGH COURT OF ORISSA; CUTTACK
W.P.(C) Nos.9168 & 9169 of 2013
In the matter of applications under Articles 226 and 227 of the
Constitution of India.
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In W.P.(C) Nos.9168 & 9169 of 2013
Bishnupriya Devi ... Petitioner
Versus
Ashoka Crokeries Ltd.
and another ... Opposite Parties
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For Petitioner : M/s. Amiya Ku.Mohanty-A,
R.K.Behera,R.C.Pradhan,
P.N.Mohanty and
R.K.Mohanty.
For opposite parties : M/s. Bansidhar Baug,
M.R.Baug, S.Rath,
P.K.Jena and S.K.Mitra.
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PRESENT:
THE HONOURABLE MR. JUSTICE S.K.MISHRA
Date of judgment: 21.8.2013
S.K.Mishra,J. In these writ petitions the petitioner, being defendant
no.2 in C.S.Nos.23 and 24 of 2012 of the court of Civil Judge
(Sr. Division), Athagarh, assails the order dated
6.4.2013(separately filed in each case) passed by the said court allowing the petition under Order 18, Rule 16 of the Code of Civil Procedure, 1908(hereinafter referred to as the "Code" for brevity) and giving a direction to the petitioner-defendant no.2 to appear in Court personally on the date fixed along with documents 2 supporting her identity and for giving evidence and also for comparison of her face with that of the photograph attached and appearing with respect to the sale deeds claimed to have been executed by her.
2. Opposite party no.3 as plaintiff filed a suit bearing C.S. (1) No.24/2012 before the learned Civil Judge (Sr. Division), Athagarh seeking a declaration that the registered sale deed bearing No.11215 dated 02.12.2011 executed by defendant no.1 in favour of the plaintiff for the suit schedule "C" property is illegal and invalid. She also prayed for a direction to defendant no.8- the Land Acquisition Collector to pay the compensation amount for the suit "C" schedule land, which is the part of the acquired land, to the plaintiff or in the alternative direct defendant no.1 to refund the total consideration money along with cost of Stamp paper, registration charge etc. and to restrain defendant no.8 to make any payment of the Land Acquisition Compensation to anybody except the plaintiff. One Gopal Ch. Ray filed a suit bearing C.S.(1) No.23/2012 before the learned Civil Judge (Sr. Division), Athagarh seeking the self-same prayer.
3. In that suits defendant nos.5 and 6, the present opposite party nos.1 and 2, filed a petition under Order 18, Rule 16 read with Section 151 of the Code to direct defendant no.2, the present petitioner, to appear before the court below to give her thumb impression and thereafter her photographs appearing in the sale deeds be compared with her personal appearance and her evidence be recorded and also her identity proof on the date of hearing of the application. The present petitioner filed her objection to such prayer made by the opposite party nos.1 and 2.
4. After hearing parties at length on 7.1.2013 the learned Civil Judge (Sr. Division), Athagarh allowed the petition and directed defendant no.2, the present petitioner, to appear in the 3 court personally on a particular date so as to enable the court to compare her face with photograph appearing on the sale deed and for verification of her identity.
5. The matter was carried by defendant no.2 to the High Court by filing a writ petition being W.P.(C) No.1793/2013. In the said writ petition, this Court held that while passing the order the learned Civil Judge (Sr. Division), Athagarh has not recorded the reasons for examination of defendant no.2 at that stage and hence the order was quashed, but liberty was given to the defendant nos.5 and 6 to file better application under Order 18, Rule 16 of the Code, if so advised. It was further directed that the application shall be decided on merit without being influenced by the earlier order within two weeks from the date of filing of such application. Thereafter opposite party nos.1 and 2-defendant nos.5 and 6 filed an application under Order 18, Rule 16 read with Section 151 of the Code for examination of defendant no.2. The said petition was disposed of by learned Civil Judge (Sr. Division), Athagarh on 6.4.2013. In both the cases, defendant no.2 was directed to appear before the court below for comparison of her face with photograph appearing on the sale deed which is impugned in this case and for her evidence. Such orders passed in the two suits are the subject matter of the writ petitions which are being disposed of by this common order.
6. Learned counsel for the petitioner very emphatically argued, by citing several cases, that the facts as alleged by defendant nos.5 and 6 in the suit do not warrant an order for early examination of the witness. It is contended that Order 18, Rule 16 of the Code enlarged the scope and power of the Court by directing or permitting any party to examine any witness at any stage and if a party to the suit convinces the Court that a material witness is to leave the jurisdiction of the Court or there is other sufficient cause is shown to the satisfaction of the Court why his 4 evidence shall be taken immediately, it is open for the Court to examine such witness out of turn. Since the defendant nos.5 an 6 have not made out sufficient ground for departure from the regular course of hearing of the suit as envisaged under Order 18, Rule 16 of the Code there is no necessity to give direction to defendant no.2 to appear in Court for recording her evidence at the outset. Hence it is contended that the order passed by learned Civil Judge (Sr. Division), Athagarh should be set aside.
7. Learned counsel appearing for the opposite parties, on the other hand, firstly contends that the writ petitions are not maintainable under Articles 226 and 227 of the Constitution of India and that such order cannot be set aside by this Court exercising jurisdiction under Articles 226 and 227 of the Constitution of India. Hence it was argued that the writ petition should be dismissed. Since learned counsel for the opposite party nos.1 and 2 has raised the point of maintainability of the writ petitions, it is apposite to consider that aspect of the case at the outset.
8. In the case of Abdul Razak (Dead) through L.Rs. and others -Versus- Mangesh Rajaram Wagle and others; (2010) 21 Supreme Court Cases 432, the Supreme Court has examined the scope and ambit of Articles 226 and 227 of the Constitution of India and has laid down the law governing the field. The Supreme Court at the first held that the High Court is duty bound to first consider whether it was called to exercise power under Article 226 of the Constitution of India or under Article 227 thereof. It is further held by the Supreme Court that if the respondents 1 and 2 had invoked the High Court's jurisdiction under Article 226, then the learned Single Judge ought to have considered whether the trial court committed a jurisdictional error by refusing to strike off the additional written statement filed by the appellants or was it a case of failure on the part of the 5 trial court to exercise the power vested init under Order 6, Rule 16 of the Code or the order under challenge was vitiated by an error of law apparent on the face of the record or was there violation of the rules of natural justice. The Supreme Court further held that the High Court was also required to consider whether there has been substantial failure of justice or manifest injustice has been caused to respondents 1 and 2 on account of the trial court's refusal to strike off the additional written statement. These are the parameters laid down by the Court in Syed Yakoob v. K.S.Radhakrishnan; AIR 1964 SC 477.
9. Thereafter the Hon'ble Supreme Court took note of the observations made by it in the case of SURYA DEV RAI V. RAM CHANDER RAI AND OTHERS; (2003) 6 Supreme Court Cases 675 and held that while deciding the writ petition filed by the respondents the High Court did not keep in mind the principles laid down by the Court in the aforesaid cases and decided as if he was exercising the appellate jurisdiction of the High Court.
10. In the case of Sadhana Lodh V. National Insurance Co. Ltd. and another; AIR 2003 SUPREME COURT 1561, a three Judge Bench, the Supreme Court has held that where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected and a State enactment has barred the remedy of filing revision under Section 115 of the Code, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. It is further held that whether the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 of the Code, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution. It is further held that the supervisory jurisdiction 6 conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. It is further held that in exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is further held that it is not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision.
11. Similar views have been expressed regarding the power of the Court under Articles 226 and 227 of the Constitution in the reported cases of Ranjeet Singh v. Ravi Prakash; AIR 2004 SUPREME COURT 3892, State of West Bengal & Ors. V. Samar Kumar Sarkar; 2009 AIR SCW 5655, JAI SINGH AND OTHERS V. MUNICIPAL CORPORATRIN OF DELHI AND ANOTHER; (2010) 9 Supreme Court Cases 385.
12. The Supreme Court in the case of SURYA DEV RAI V. RAM CHANDER RAI AND OTHERS (Supra) has the occasion of referring to number of earlier judgments passed by the Supreme Court in all matters and has summarized the law governing the field. While discussing the distinction between a writ of certiorari under Article 226 and supervisory jurisdiction under Article 227. The Supreme Court in paragraph-25 of the said judgment has held that upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become 7 customary with the lawyers labeling their petitions as one common under Articles 226 and 227 of the Constitution. Thereafter, the Supreme Court further held at paragraph-37 that a writ of certiorari is issued against the acts or proceedings of a judicial or quasi judicial body conferred with power to determine questions affecting the rights of subjects and obliged to act judicially. The Supreme Court, therefore, is of the opinion that the writ of certiorari is directed against the act, order or proceedings of the subordinate court, it can issue even if the lis is between two private parties. In the aforesaid judgment the Supreme Court has summarized the conclusions at pargraph-38. This Court finds it apposite to quote the same:-
"Para-38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:
(1) Amendment by Act 46 of 1999 with effect from 1.7.2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has 8 assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self- evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings.
The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
9(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re-
appreciation of evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters of exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or fresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.
13. In applying this principle to the present case, this Court is of the opinion that the writ petition is maintainable. The only other question that remains for determination is whether there has been an error in exercising the jurisdiction by the original court requiring interference of this Court in the matter.
14. Order 18, Rule 16 of the Code provides for the power of the Court to examine the witness immediately. It reads as follows:-
"16. Power to examine witness immediately - (1) where a witness is about to leave the jurisdiction of the Court or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner hereinbefore provided.10
(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties. (3) The evidence so taken shall be read over to the witness, and if he admits it to be correct shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit.
15. This Court in the case of Kamalakanta Parida and another V. Sri Saroj Badan Parida and others; 2013 (1) OLR - 412 held that the above provision is unambiguous and clearly provides that on fulfillment of any of the two conditions, jurisdiction under the said provision can be exercised, the first being where the witness sought to be examined is about to leave the jurisdiction of the Court and the second is where sufficient cause is shown to the satisfaction of the Court with regard to his or her immediate examination. This Court further held that in order to find out as to whether the second condition is fulfilled in a given case, has to record his satisfaction that sufficient cause exists for examining a witness immediately and such sufficient cause must be shown to be existing by the applicant.
16. The said provision also came up for consideration by the High Court of Karnataka in the case of CHANNABASAPPA YALLAPPA KARADDI V. HANAMAPPA CHANNABASAPPA KARADDI; 2003(3) Kar.L.J.584, wherein the Karnataka High Court held that Order 18 of the Code prescribed the procedure as to how a hearing of the suit must be commenced and in what order the examination of witnesses must be done. Order 18, Rule 16 of the Code provides for exception to the rule. Under Rule 16, if a party to the suit convinces the Court that a material witness is about the leave the jurisdiction of the Court or there is possibility of his not getting examined immediately, it is open for the Court to examine such witness totally out of turn.
1117. In the case of Debadutta Pal V. Indumati Pal and others; 81 (1996) C.L.T. 413, this Court has held that Order 18, Rule 16 of the Code shows that the Rule regarding onus of proof need not be followed in all circumstances. It is further held that the rule provides that where a witness is about to leave jurisdiction of the court or other sufficient cause is shown, why his evidence should not be taken immediately, the Court may take evidence "forthwith" in presence of the parties or on a date fixed for examination after notice to the parties.
18. Applying the aforesaid law to the case in hand, it is seen that the defendant nos.5 and 6 have filed the petition under Order 18, Rule 16 of the Code, inter alia, alleging that the original owner of the suit land/plot namely, Satyapriya Devi and Bishnupriya Devi, the defendant nos.2 and 3 respectively sold the entire suit land by R.S.D. dated 5.10.2002 to Rashmi Patnaik, defendant no.4, who later on by R.S.D. dated 26.5.2004 sold the entire suit plot to defendant no.5, who by R.S.D. dated 12.10.2004 sold the suit plot to the present defendant no.6. Thus, defendant no.6 became the owner of the suit plot.
It is further averred that defendant no.1 along with her husband and others by impersonating Bishnupriya Devi have managed to get registered a fake and forged sale deed on 25.11.2011 after the land is acquired under the L. A. Act and thereafter the said Basanta Khatua has executed a sale deed on 2.12.2011 to the present plaintiff. Defendant nos.5 and 6 further submit that Bishnupriya Devi, who has no right, title and interest over the suit land since 5.10.2002, has been impersonated. The photograph appended to the R.S.D. dated 5.10.2002 and to the fake and forged sale deed dated 25.11.2011 differs completely from each other. In R.S.D. dated 5.10.2002, Bishnupriya Devi was a widow and was aged about 62 years whereas in the fake, forged and impersonated R.S.D. dated 25.11.2011 her aged has 12 been shown as sixty years and her husband is shown to be alive. At present the age of Bishnupriya Devi is seventy one years and she is unable to move. It is further stated that she has been impersonated and a fake and fictitious person has signed her name in odia in the Vakalatnama and written statement. It is further stated that because of her old age if she breaths her last, the allegation of her impersonation can never be proved. Bishnupriya Devi is very old and feeble and is suffering from her old age ailments.
It is further stated that in the sale deed dtd.5.10.2002, she has given her left thumb impression, whereas in the forged and impersonated sale deed dated 25.11.2011 her signature has been put by some person impersonating her. It is, therefore, contended that the appearance of said Bishnupriya Devi in person before the court below is very much necessary in order to tally/compare the photograph and left thumb impression of said Bishnupriya Devi and also for recording her evidence. It is further contended that because of the old age and ill health of Bishnupriya Devi she may breathe her last at any time before giving evidence in the present case. Her left thumb impression and physical appearance and taking of her evidence before the court below are very much necessary for the just decision of the case. Therefore, it was prayed that the learned Civil Judge be pleased to direct Bishnupriya Devi, defendant no.2, to appear personally before the court below to give her thumb impression and thereafter her photographs appearing in the sale deeds may be compared with her personal appearance and her evidence may be recorded.
19. An objection was filed by defendant no.2 contending that the age of the defendant no.2 is 61 years and she is a very hale and hearty. It is further alleged that the illness and old age of defendant no.2 is not supported by any medical document and that is also not a sufficient cause for defendant nos.5 and 6 to 13 record her evidence. He alleged that defendant no.3 has died since 1989 and despite her death the sale deed dated 5.10.2002 had been executed in favour of one Rashmi Pattnaik, which was subsequently sold to defendant no.5 and then to defendant no.6. It is further submitted that the defendant nos.5 and 6 have not filed any better application than the one filed earlier, for which the petition is liable to be rejected.
20. Learned Civil Judge (Sr. Division), Athagarh after taking into consideration the submissions made by the parties held that the defendant nos.5 and 6 have claimed that there is discrepancy with respect to the age of defendant no.2 as mentioned in the sale deed dated 5.10.2002 and 25.11.2011 and even with respect to her signature and L.T.I. Apparently on the face of the documents, filed to substantiate their stand, discrepancy exists with respect to her age and with respect to her signature and L.T.I. and also with respect to the fact that whether she is a widow or not. It is further held that the petitioners have also claimed that she is ailing and certainly their stand with respect to her illness cannot be substantiated with any medical document as it is beyond their reach. The contention of the learned counsel for defendant no.2 that she is not ill and that she is not an aged lady does not inspire confidence of the court. Since discrepancies are clearly noticed with respect to her age and admittedly she is more that 60 years as shown in the written statement. Hence the discrepancies with respect to the age of defendant no.2 in both the sale deeds, signature appearing in the written statement and in one of the sale deed and her L.T.I. appearing in another sale deed and the fact that she has filed written statement in court, it is felt that these factors are clearly essential to allow the petition filed by the defendant nos.5 and 6 as there is sufficient cause for the same and for arriving just and proper adjudication of the case and in interest of justice, the petitioner is allowed.
1421. From the materials as discussed earlier, Order 18, Rule 16 of the Code is unambiguous and clearly provides that on fulfillment of any of the two conditions, jurisdiction under the said provision can be exercised, the first being where the witness sought to be examined is about to leave the jurisdiction of the Court and the second is where sufficient cause is shown to the satisfaction of the Court with regard to his or her immediate examination. In this case fulfillment of the first condition does not arise as defendant nos.5 and 6 do not allege that defendant no.2 is about to leave the jurisdiction of the Court. Therefore, the petition is clearly based on the second condition. The Court in order to find out as to whether the second condition is fulfilled in a given case, has to record his satisfaction that sufficient cause exists for examining a witness immediately and such sufficient cause must be shown to be existing by the applicant.
22. From the impugned order, it is seen that the Court has allowed the petition on the ground that there are certain manifest discrepancies regarding the age of defendant no.2, her signature and L.T.I. appearing in the sale deed and the fact that she is a widow or not. These are the conditions which are not germane for examining the witness at an early stage giving a go bye the procedure prescribed in Order 18, Rule 1 of the Code. A careful perusal of the order passed by the learned Civil Judge (Sr. Division), Athagarh shows that the order passed is not coming within the parameters prescribed in exercise of the jurisdiction under Order 18, Rule 16 of the Code.
23. That being the case, this Court is of the opinion that the learned Civil Judge (Sr. Division), Athagarh has exercised her jurisdiction under Order 18, Rule 16 of the Code with material irregularities causing gross injustice to the parties. Instead of allowing such an application, the learned Civil Judge 15 (Sr. Division), Athagarh could have taken up expeditious trial of the suit.
24. In that view of the matter, the writ petition succeeds. The orders dated 06.4.2013(separately filed in each case) passed by the learned Civil Judge (Sr. Division), Athagarh, are hereby quashed. The parties are directed to appear before the learned Civil Judge (Sr. Division), Athagarh, on 31st August, 2013. Learned Civil Judge (Sr. Division), Athagarh is directed to take up the trial of the suit as expeditiously as possible and dispose of the same within a period of six months from the date of receipt of notice of this order.
25. The writ petitions and the pending Misc. Cases are disposed of.
Sd/-
S.K.Mishra, J True copy Orissa High Court, Cuttack Dated 21st August, 2013/A.K.Behera. Secretary .
16 Orissa High Court, Cuttack Dated June, 2010/A.K.Behera. 17 Sd/- A.S.Naidu,J. S.C.Parija,J. I agree. Sd/- S.C.Parija,J True Copy Orissa High Court, Cuttack Dated June,2010/A.K.Behera. P.A. 18