Gujarat High Court
Nagjibhai Punjabhai Rabari vs Gumansinh Meramansinh Parmar on 6 November, 2023
NEUTRAL CITATION
C/SCA/12902/2023 ORDER DATED: 06/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12902 of 2023
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NAGJIBHAI PUNJABHAI RABARI
Versus
GUMANSINH MERAMANSINH PARMAR
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Appearance:
MR PARTHIV B SHAH(2678) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2,3,4,5,5.1,5.2,5.3,5.4,6
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 06/11/2023
ORAL ORDER
1. Heard learned advocate Mr. Parthiv B. Shah for the petitioners.
2. By way of this petition under Article 227 of Constitution of India, the petitioners have prayed for the following reliefs:-
"7(A) YOUR LORDSHIPS be pleased to admit and allow this petition in the interest of justice;
(B) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned order dated 29.05.2023 passed below application below Ex.196 in Regular Civil Suit No.45 of 1995 by Ld. Addl. Senior Civil Judge, Vadodara, in the interest of justice;
(C) YOUR LORDSHIPS be pleased to stay the further proceedings of Regular Civil Suit No.45 of 1995, pending the admission hearing and final disposal of this petition, in the interest of justice;
(D) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed proper by this Hon'ble Court."Page 1 of 9 Downloaded on : Tue Nov 07 20:42:26 IST 2023
NEUTRAL CITATION C/SCA/12902/2023 ORDER DATED: 06/11/2023 undefined
3. The facts in the present petition are summarized that the present petitioners are the original defendant Nos.2 and 3. The respondent No.1 has filed the suit for cancellation of sale deed and possession of the suit property. After recording the evidence, the stage of the suit is for pronouncement of the judgment. The original plaintiff after completion of the submissions moved an application for production of the documents wherein a public notice published in the Sandesh Newspaper, was sought to be produced. The said public notice was issued by the present petitioners for issuance of the title clearance certificate of the suit land. However, the present petitioners by way of a purshis declared that they do not intend to sale or transfer the suit property and under some mistake the said public notice dated 29.12.2022 was issued. Thereafter, the petitioners filed an application exhibit-196 by invoking Order 18 Rule 17 of the Code of Civil Procedure and sought to recall the plaintiff for cross- examination. The said application was contested by the defendants and ultimately the application came to be dismissed by the learned trial Court on 29.05.2023.
4. Learned advocate for the petitioners submitted that there is a serious manipulation in the Rojkam and learned Page 2 of 9 Downloaded on : Tue Nov 07 20:42:26 IST 2023 NEUTRAL CITATION C/SCA/12902/2023 ORDER DATED: 06/11/2023 undefined advocate for the petitioners has made serious allegation with regard to noting of the Rojkam. One of the example pointed out by the learned advocate for the petitioners that the examination-in-chief of the present petitioners was sworn before the Registrar, Civil Court (SD), Vadodara on 22.08.2022 wherein in the Rojkam (Exhibit-170) reveals that the said affidavit in lieu of examination-in-chief is taken on record on 22.07.2022 (Exhibit-170). Thereafter, the matter was adjourned to 10.08.2022. Learned advocate for the petitioners also submitted that the final submissions of defendant Nos.2 and 3 are concluded and the suit was posted for pronouncement of the judgment. It is also an allegation of the petitioners that there are manipulation in the Rojkam.
The learned advocate for the petitioners has relied upon a decision of K.K. Velusamy versus N. Palanisamy reported in 2011(0) GLHEL-SC49580.
5. Since the issue involved in the present petition is whether plaintiff can be recalled for cross examination almost at the stage of Pronouncement Judgment Stage. The allegation of the petitioners about the manipulation in the Rojkam is left open and if the respondent and the Page 3 of 9 Downloaded on : Tue Nov 07 20:42:26 IST 2023 NEUTRAL CITATION C/SCA/12902/2023 ORDER DATED: 06/11/2023 undefined petitioners are so serious about the said allegation, they may move appropriate application, if so advised, before the learned trial Court.
6. Having heard learned advocate for the petitioners and after considering the submissions and averments made in the application Exhibit-196, it is pertinent to refer the provisions of Order 18 Rule 17 of the Code of Civil Procedure, which is reproduced hereunder:-
"17. Court may recall and examine witness.-- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit."
7. Thus, while referring the aforesaid provisions it is the right given to the Court to recall and examine the witness. The intention of the legislature in Rule 17 of Order 18 of Code of Civil Procedure is that the Court may at any stage of the suit recall any witness who has been examined earlier and the right is also given to the Court to question the said witness who has already been examined earlier. Thus, it is crystal clear that the right to recall the witness is not a right of any party but it is sole discretion of the Page 4 of 9 Downloaded on : Tue Nov 07 20:42:26 IST 2023 NEUTRAL CITATION C/SCA/12902/2023 ORDER DATED: 06/11/2023 undefined Court. If the Court feels or if Court finds it appropriate to recall a witness who has already been examined, only the Court has power to recall such witness.
8. In the present case, application under Order 18 Rule 17 which was filed by the defendant Nos.2 and 3 is read carefully no where it is stated as to the cause for recalling the plaintiff. The only reason which is assigned in paragraph No.3 of the application is that since the plaintiff vide application dated 02.01.2023 sought permission to produce the evidence and which came to be allowed, the cause for filing an application under Order 18 Rule 17 came to be arose. As observed earlier the plaintiff sought to produce a public notice vide application dated 02.01.2023 and as observed by the learned trial Court by way of purshis defendant Nos.2 and 3 i.e. the present petitioners had declared that under some mistake the public notice dated 29.12.2022 (Marked as 181/1) was published and it was also declared by the petitioners that they do not intend to sale or transfer the suit property. Thus, the issue rests there. Thus, the reason assigned for recalling of witness falls flat.
9. The decision K.K. Velusamy versus N. Palanisamy Page 5 of 9 Downloaded on : Tue Nov 07 20:42:26 IST 2023 NEUTRAL CITATION C/SCA/12902/2023 ORDER DATED: 06/11/2023 undefined [2011(0) GLHEL-SC49580] is not helpful to the case of the petitioners inasmuch as in paragraph No.4 of the said decision the facts are narrated hereinunder:-
"4. The suit was filed on 26.03.2007. The written statement was filed on 12.09.2007. Thereafter issues were framed and both parties led evidence. On 11.11.2008 when the arguments were in progress, the appellant filed two applications (numbered as IA No.216/2009 and IA No.217/2009. The first application was filed under section 151 of the Code of Civil Procedure ('Code' for short) with a prayer to reopen the evidence for the purpose of further cross- examination of Plaintiff (PW1) and the attesting witness Eswaramoorthy (PW2). IA No.217/2009 was filed under Order 18 Rule 17 of the Code for recalling Pws.1 and 2 for further cross examination. The appellant wanted to cross-examine the witnesses with reference to the admissions made during some conversations, recorded on a compact disc (an electronic record). In the affidavits filed in support of the said applications, the appellant alleged that during conversations among the appellant, respondent and three others (Ponnuswamy alias Krishnamoorthy, Shiva and Saravana Kumar), the respondent-plaintiff admitted that Eswaramoorthy (PW2) had lent the amount (shown as advance in the agreement of sale) to the appellant through the respondent; and that during another conversation among the appellant, Eswaramoorthy and Shiva, the said Eswaramoorthy (PW2) also admitted that he had lent the amount (mentioned in the agreement of sale advance) through the respondent; that both conversations were recorded by a digital voice recorder; that conversation with plaintiff was recorded on 27.10.2008 between 8 a.m. to 9.45 a.m. and the conversation with Eswaramoorthy was recorded on 31.10.2008 between 7 to 9.50 p.m., and that it was therefore necessary to reopen the evidence and further Page 6 of 9 Downloaded on : Tue Nov 07 20:42:26 IST 2023 NEUTRAL CITATION C/SCA/12902/2023 ORDER DATED: 06/11/2023 undefined cross-examine PW1 and PW2 with reference to the said admissions (electronically recorded evidence) to demonstrate that the agreement of sale was only a securty for the loan. It is stated that the Compact Disc containing the recording of the said conversations was produced along with the said applications."
10. Thus, on considering the aforesaid facts the recall of the witness was allowed by the Hon'ble Apex Court whereas in the present case the reason for recalling of plaintiff is not mentioned in the application. The application is silent so far as the reasons for recalling of the witness i.e. the plaintiff is concerned. It is absolutely vague application.
11. The learned Civil Judge has noted the conduct of the defendant Nos.2 and 3, it is also observed by the learned trial Court that the stage of suit was for the pronouncement of judgment and at that stage application Exhibit-196 under Order 18 Rule 17 came to be filed and that too without any cogent reasons. The learned trial Court has also observed that the suit is very old and the intention of the petitioners is to drag the proceedings on one pretext or other.
12. It is also noteworthy that the scope under Article 227 of the Constitution of India is very limited and there is no Page 7 of 9 Downloaded on : Tue Nov 07 20:42:26 IST 2023 NEUTRAL CITATION C/SCA/12902/2023 ORDER DATED: 06/11/2023 undefined scope to reassess the factual aspect in light of the judgment of the Hon'ble Apex Court in the case of M/S Garment Craft Vs. Prakash Chand Goel; 2022 LawSuit(SC)
34. The scope of Article 227 of the Constitution of India has been discussed. Paragraph No.18 of the above judgment is hereby reproduced as under:-
"18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal [Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The jurisdiction exercised is in the nature of correctional1 jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the Page 8 of 9 Downloaded on : Tue Nov 07 20:42:26 IST 2023 NEUTRAL CITATION C/SCA/12902/2023 ORDER DATED: 06/11/2023 undefined bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
13. I am of the view that the order impugned does not require any interference and there is no infirmity in the order impugned. The petition has no legs to stand. In view of the above observations, the petition is dismissed with no order as to costs.
14. The observations made hereinabove are only for deciding the present petition and the learned trial Court may decide the suit purely as per law and on the basis of evidence led by the parties and the submissions made by the parties.
(D. M. DESAI,J) Manoj Kumar Rai Page 9 of 9 Downloaded on : Tue Nov 07 20:42:26 IST 2023