High Court · 2010

3. For better appreciation of the cases the brief facts are narrated herein below in order to enable the Court effectually and completely to adjudicate upon and settle the questions raised in these two revision petitions- The petitioner herein as plaintiff brought a suit being Title Suit No. 5 of 2003 against the respondent herein on the file of the learned Civil Judge (S r. Div.) Jorhat seeking a decree for eviction of the defendant from the suit pre mises and for recovery of Khas possession and for a decree of the arrear rent of Rs. 10,500/-, also for compensation. The said suit was filed on the ground of d efault and to raise a new construction on the said suit land inclusive of the la nd of his brother Sunil Kumar Dey wherefor permission was obtained to undertake the construction. During the pendency of the suit the pecuniary jurisdiction of the Civil Courts were enhanced and accordingly the suit was transferred to the l earned Munsiff No. 1 Jorhat and the suit was renumbered as Title Suit No. 38 of 2006 which is pending for disposal.

4. The respondent herein as defendant in the suit submitted the written sta tement contending, inter alia, that there was rent agreement between the plainti ff landlord and the defendant tenant for two years but he started paying monthly rent in Court because of non-issuing of rent receipts by the landlord though he had been paying rent regularly and in time within 10th day of the month next fo llowing and thereby denied that he is a defaulter and other contentions pleaded in the plaint are denied.

5. The rent for the month of October, 2005 was deposited in the Court after taking permission from the court being Misc.(N.J.) Case No. 352/2005 whereby th e learned trial Court vide order dated 10.11.05 directed to submit the challan i n the Court on 22.11.05 by depositing the rent to treasury, which, however was d ismissed on 22.11.05 for non-submission of challan in the Court as directed. The reafter the defendant had filed an application under Section 151 of the Code of Civil Procedure, 1908 (hereinafter the Code) vide Petition No. 204 of 2008 for r estoration of Misc. (N.J.) Case No. 352/05 praying for accepting the challan No. 8 dated 17.11.05 which was dismissed vide order dated 28.03.08 holding that the Misc (N.J.) Case No. 352/05 has already been exhibited in Title Suit No. 38 of 2006 and by accepting the challan would cause prejudice to the plaintiff.

6. Being aggrieved and dissatisfied with the order passed on 28.03.08 the d efendant approached this Court by filing a writ petition under Article 226 of th e Constitution of India being W.P. (C) No. 2413 of 2008 which came up for consid eration on 12.02.09 and the Court after hearing the parties passed the following order: (cid:28)12.02.09: Heard Mr. N. Choudhury, learned counsel for the petitioner assisted by M s. P. Goswami as well as Mr. S. Dasgupta, learned counsel for the respondents. As agreed to by the learned counsel for the parties, this writ petition is disposed of provided that the petitioner will be at liberty to file appropria te application before the learned trial court seeking exhibition of order passed in Misc N.J. Case No. 352/05 by learned Munsiff No. 1 Jorhat in Title Suit No. 38 of 2006 following the due procedure. In the event of making such application by the petitioner, the learned t rial court shall consider the same in accordance with the law. (cid:29)

7. With the order in hand the respondent once again filed an application be ing Misc. (J) case no. 18 of 2009 arising out of Misc. (N.J.) Case No. 352/05 be fore the learned trial court praying to accept the challan already filed by rest oring the case against which an objection was filed. The respondent has filed an other application in the title suit under Section 138 of the Evidence Act read w ith Section 151 of the Code being petition no. 434/09 dated 13.03.09 seeking re- examination of DW 2 with reference to filing of challan in Misc (N.J.) Case No. 352/05 which came up for consideration on 18.06.09 before the learned trial Cour t and the learned trial Court accepted both the applications and passed the impu gned orders as indicated above which are under challenge before this court.

8. rd Mr. N Choudhury, learned counsel for the respondent. Heard Mr. A. Das, learned counsel appearing for the petitioner. Also hea

9. Raising the question of scope and power under Article 227 of the Constit ution of India in the matter related to this case Mr. Das, learned counsel, appe aring for the petitioner would urge that allowing to exhibit Misc (N.J.) Case No . 352/2005 which had already been exhibited in the suit as Exhibit G(25) and dir ecting to take steps for re-examination of DW 2 who had already been examined and cross-examined thereby exceeded its jurisdiction not vested in it by law req uires interference under revisional jurisdiction.

10. Mr. Das, has further contended that a conjoint reading of two orders wou ld disclose that admittedly the Misc. (N.J.) No. 352/2005 was dismissed for non- submission of challan against which an appeal is provided under Section 8 of the Assam Urban Areas Rent Control Act, 1972, but the respondent had approached the court under writ jurisdiction, which, however, ordered to proceed with due proc edure in the event if application is filed, meaning thereby that the Court did n ot direct to fill up the lacunae but the learned trial court allowed to exhibit the challan by re-examination of DW 2, which if allowed to stand, would be erron eous assumption of jurisdiction which require interference being without jurisd iction. Mr. Das, would contend that Order 18 Rule 17 of the Code read with Secti 11. on 138 of the Evidence Act would reveal that the Court may at any stage of a sui t recall any witness who has been examined and may, (subject to the law of evide nce for the time being in force) put such questions to him as the court thinks f it, whereas under Section 138 of the Evidence Act, the Court may direct for re- examination on a matter referred to in cross-examination for explanation and not hing more than that and therefore the orders passed on 18.06.2009 cannot be su stained under the law. In support of his contentions, the learned counsel for the petitioner ha

12. s referred the following decisions: 1. (2009) 4 SCC 410 (Vaidraj Nagappa Verneker (Dead) through LRs -Vs- Sharadacha ndra Prabhakar Gogate) 2. 2008 (1) GLT 792 (Assam Brook Limited -Vs- Borgong Catholic Hospital) 3. 2008 (3) GLT 179 (Usman Goni & Ors. -Vs- Abdul Khalique & Ors.)

4. 2007 (4) GLT 484 (Samiran Paul -Vs- Anubha Banik & Ors.) 5. (1995) 2 GLR 224 (Management of Glaxo India Ltd. -Vs- State of Assam & three others). Vaidraj Naggappa (supra), relates to recall of witness after examination is comp leted as envisaged under Order 18 Rule 17 of the Code. The Apex Court has held t hat Order 18 Rule 17 is not intended to be used to fill up omissions in the evid ence of a witness who has already been examined, which supports the case of the petitioner. In Assam Brook Ltd. (supra), this Court has held that there is no absolute prohi bition that once plaintiff has failed to produce documents at the time of presen tation of plaint, he is precluded from doing so at the later stage in the suit s ubject to leave granted by the Court. In Usman Goni (supra), though written statement filed beyond the period of 90 da ys was allowed by the trial court, was subsequently rejected on plaintiff’s pray er. The Court held, rejection amounts to review of its own order. The reference has been made to impress upon the Court that once an order rejecti ng the application is passed, the Court cannot review its own order subsequently . There is no dispute about the aforesaid proposition. Samiran Paul (supra) relates to section 5(4) of the Assam Urban Areas Rent Contr ol Act, 1972, with reference to section 141 of the Code, wherein this Court has held that an application under section 5 (4) of the Act, 1972 is not a proceedin g within the meaning of section 141 of the Code relating to a question of defaul t which should be decided in the suit. There is no dispute in the abovementioned analogy. Management of Glaxo India Ltd. (supra), relates to Order 18 Rule 17 of the Code wherein, this Court has held that the parties should not be allowed to recall a witness to fill up the lacunae under the pretext of recall which is also applica ble in the instant case.

13. In reply to the contentions raised by the learned counsel for the petiti oner, Mr. N Choudhury, learned counsel appearing for the respondent would urge t hat the power to call a witness for re-examination is inherent power of the cour t in order to give substantial justice to the parties and therefore contended th at the matter which could not be exhibited, if allowed to be exhibited at a late r stage by calling the witness for re-examination would not prejudice to the pet itioner’s interest, thereby supported the orders passed by the learned trial C ourt, which, he submits do not require to be interfered with in exercise of powe r under revisional jurisdiction. In support of his contentions, the learned counsel for respondent has re

14. ferred the following decisions; 1. (2003) 6 SCC 675 (Surya Dev Rai -Vs- Ramchander Rai & Ors.) 2. AIR 1992 SC 639 (Smti Priya Bala Ghose & Ors. -Vs-Bajranglal Singhania & Anr. ) In Suryadev Rai (supra), the Apex Court has held that amendment of section 115 ( 1) of the Code would not affect the jurisdiction under Article 226 and 227 of th e Constitution of India. There is no ambiguity of the above proposition of law. Priya Bala Ghosh (supra), relates to tender of rent which is held to be not a co ndition precedent. The decision is not applicable in the instant case.

15. Considered the submissions made by the learned counsel appearing for the parties along with the pleadings made in the revision petition. The only questi on requires to be answered in this revision petition as to whether the learned t rial Court is justified in allowing to exhibit the Misc. (N.J.) Case No.352/05 w hich was already exhibited being Exhibit G(25) directing to take steps for re-ex amination of DW 2 at the stage of argument of the suit along with further observ ation that if the defendant wants to exhibit the challan, he is allowed to do so through DW 2 as indicated in the order passed in the Title Suit.

16. To answer the question this court is required to go back to the order da ted 10.11.05 passed in Misc (N.J.) Case No. 352/05 whereby the learned trial Cou rt allowed the defendant to deposit the rent for the month of October 2005 amoun ting to Rs.1500/- in the court directing to submit the challan in the court on 2 2.11.05 by depositing the rent to the treasury. The defendant admittedly failed to submit the challan on the date fixed. Consequently thereupon the Misc. case w as dismissed on 22.11.05 and thereafter the case proceeded in accordance with la w. The witnesses were examined and cross-examined and the case was fixed for arg ument. At the stage of argument an application was filed on 07.02.08 under Secti on 151 of the Code seeking to accept the challan after restoration of the case. The said application came up for consideration on 28.03.08 before the le 17. arned trial Court whereby the learned trial Court rejected the petition holding that the case was dismissed on 22.11.05 and prayer for restoration of the same h as been made only on 07.02.08 which was already exhibited in TS No. 38/06 and th erefore allowing the restoration petition by accepting the challan would cause p rejudice to the plaintiff. Against the order dated 28.03.08 the defendant came t o this Court in a writ proceeding whereby this court observed that in the event of making any such application the learned trial Court shall consider the same i n accordance with law which is quoted hereinabove.

18. A reading of the order dated 18.06.09 passed in Title Suit No. 38/06 wou ld reveal that since this court passed the order as indicated above the learned trial court thought it fit to allow the Misc. (N.J.) 352/05 directing to take st eps for re-examination of DW 2. In the other order dated 18.06.09 passed in Misc (J) 18 of 2009 the learned trial court observed that if the defendant wants to exhibit the challan he can file the same and can exhibit the same through DW 2 w ho is allowed to stand as a witness in the Title Suit. The orders so passed by t he learned trial court without referring the relevant provisions of law cannot b e accepted by this Court after closure of the evidences, more so, when the learn ed Court rejected the petition on 28.03.08 which, if allowed, amounts to review of its own order.

19. The question of re-examination of a witness alongwith the provisions to produce documents upon which relief is claimed or relied upon has been dealt wit h in Order 18 Rule 17 of the Code read with Order 8 Rule 1 A of the Code alongwi th Section 137 and 138 of the Evidence Act. Order 18 Rule 17 of the Code empower s the court to recall any witness at any stage of the suit who has been examined (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit. Section 137 of the Evidence Act provides for re -examination subsequent to the cross-examination by the party who called him sha ll call for his re-examination. Section 138 of the evidence act provides with di rection of re-examination which the court may be directed to the explanation of matters referred to in cross-examination and if new matters is, by permission of the court, introduced in re-examination the adverse party may further cross-exa mine upon the matter. By allowing the cross-examination of DW-2 vide order dated 18.06.2009, the defendant would be allowed to fill up the lacunae which is not permissible under the law. Moreover, when the challan depositing the rent for the month of October 20. 2005 was not produced before the court as directed resulting in dismissal of the Misc Case (N.J.) Case No. 352/05 cannot be re-opened under order 8 Rule 1A of t he Code in exercise of power under the inherent jurisdiction and/or under Sectio n 138 of the Evidence Act read with Order 18 Rule 17 of the Code.

21. Considering the matter in its entirety and the decisions relied upon by the learned counsel appearing for the petitioner it would reveal that the learne d trial Court has exceeded in its jurisdiction in passing the orders dated 18.06 .2009 in Title Suit No. 38/06 and in Misc. (J) No. 18 of 2009 and thus the same require interference, which the Court hereby do.

22. In the result both the revision petitions are allowed setting aside the orders passed in Title Suit No. 38 of 2006 and Misc. (J) No. 18 of 2009 on 18. 06.09 by the learned Munsiff No. 1 Jorhat. Since the case is of the year 2003, t he learned trial Court is directed to dispose of the suit within two months from the date of receipt of a certified copy of this order.

23. 24. Stay order passed earlier stands vacated. The parties are left to bear their own costs.