When court should not give more than three adjournment?

No. litigant has a right to abuse the procedure provided in the Code of Civil Procedure. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII Rule 1 Code of Civil Procedure is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII Rule 1 Code of Civil Procedure should be maintained. When we say ‘justifiable cause’ what we mean to say is, a cause which is not only ‘sufficient cause’ as contemplated in Sub-rule (1) of Order XVII Code of Civil Procedure but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. However, the absence of the lawyer or his non-availability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has No. right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit – whether Plaintiff or Defendant – must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don’t, they do so at their own peril. Insofar as present case is concerned, if the stakes were high, the Plaintiff ought to have been more serious and vigilant in prosecuting the suit and producing its evidence. If despite three opportunities, No. evidence was let in by the Plaintiff, in our view, it deserved No. sympathy in second appeal in exercise of power under Section 100 Code of Civil Procedure. We find No. justification at all for the High Court in upsetting the concurrent judgment of the courts below. The High Court was clearly in error in giving the Plaintiff an opportunity to produce evidence when No. justification for that course existed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7532 of 2011 (Arising out of SLP (Civil) No. 30105 of 2010)

Decided On: 30.08.2011

Shiv Cotex Vs.Tirgun Auto Plast P. Ltd. and Ors.

Hon’ble Judges/Coram:

Aftab Alam and R.M. Lodha, JJ.

Citation: (2011) 9 SCC 678

  1. Leave granted.
  2. The purchaser, who was not party to the suit but imp leaded as 2nd Respondent in the first appeal and was arrayed as such in the second appeal, is the Appellant being aggrieved by the judgment and order of the High Court of Punjab and Haryana whereby the Single Judge of that Court allowed the second appeal preferred by the Plaintiff (1st Respondent) and set aside the concurrent judgment and decree of the courts below and remanded the suit to the trial court for fresh disposal after giving the Plaintiff an opportunity to lead evidence.

  3. In the month of May, 1991, the 1st Respondent – M/s. Tirgun Auto Plast Private Limited – applied to the Punjab Financial Corporation (for short, ‘Corporation’) for a term loan of Rs. 47.60 lac and special capital assistance (soft loan) of Rs. 4 lac. The term loan of Rs. 46 lac and soft loan of Rs. 4 lac was disbursed by the Corporation to the 1st Respondent in the month of October, 1991 on execution of the mortgage deed. Vide this mortgage deed, the 1st Respondent mortgaged its various assets in favour of the Corporation. On the 1st Respondent’s failure to pay the due amount along with interest, the Corporation on March 19, 1998 took over the mortgaged property comprising land, building and machinery in exercise of its power under Section 29 of the State Financial Corporations Act, 1951 (for short, ‘1951 Act’).

  4. The 1st Respondent (hereinafter referred to as ‘Plaintiff’), on February 17, 2001, filed a suit for declaration, mandatory injunction and other relief’s against the Corporation – 2nd Respondent in the Court of Civil Judge (Junior Division), Chandigarh. Inter alia, the Plaintiff prayed that the takeover of its assets and all subsequent sale proceedings by the Corporation be declared illegal, null and void and inoperative; the direction be issued to the Corporation to charge interest at the rate of 12.5 per cent per annum (prevailing rate) on the loan from the date of commencement of production to the date of takeover and the Corporation be also directed to restore back the possession of the suit property to it.

  5. The Corporation (sole Defendant) in the suit traversed the Plaintiff’s claim and set up the plea that Plaintiff could not pay the due amount under the loan despite repeated notices necessitating the action under Section 29 of the 1951 Act. The Corporation asserted that fair procedure was followed and No. illegality was committed by it in proceeding under Section 29 of the 1951 Act. The Corporation also raised objections regarding the maintainability of the suit on the grounds of limitation and jurisdiction of the Civil Court.

  6. The trial court having regard to the pleadings of the parties framed issues (six in all) on July 19, 2006. Issue No. 1 was to the following effect:

Whether impugned action of Defendant is illegal and if it is proved, whether Plaintiff is entitled for decree of declaration and mandatory injunction?

The burden to prove the above issue was kept on the Plaintiff.

  1. Thereafter, the suit was fixed for the evidence of the Plaintiff on November 1, 2006. However, No. evidence was let in on that day. The matter was then adjourned for the evidence of the Plaintiff on March 2, 2007. On that day also the Plaintiff did not produce evidence and the matter was adjourned to May 10, 2007. On May 10, 2007 again Plaintiff did not produce any evidence. The trial court was, thus, constrained to proceed under Order XVII Rule 3(a) of the Code of Civil Procedure, 1908 (for short ‘Code of Civil Procedure’) and passed the following order:

Matter is fixed for conclusion of the Plaintiff’s evidence being last opportunity. No. Plaintiff’s witness is present and neither any cogent reason has been put forth for such failure fully knowing the fact that today is the third effective opportunity for conclusion of Plaintiff’s evidence. Hence, matter is ordered to be proceeded under Order 17, Rule 3(a) Code of Civil Procedure and Plaintiff’s evidence is deemed to be closed. Heard. To come up after lunch for orders.

  1. On May 10, 2007 itself in light of the above order, the trial court dismissed the suit in its post lunch session.

  2. After dismissal of the suit, the Corporation sold the mortgaged property by auction to the Appellant for Rs. 64.60 lac (Sixty four lac and sixty thousand only).

  3. Against the judgment and decree of the trial court passed on May 10, 2007, the Plaintiff preferred civil appeal in the court of Additional District Judge, Chandigarh. In the appeal, the Plaintiff made an application on December 21, 2007 for impalement of the Appellant and its partners as Respondent Nos. 2 to 5. The application for impalement was granted and the Appellant and Respondent Nos. 3 to 5 herein were added as parties.

  4. The Additional District Judge, Chandigarh after hearing the parties, dismissed the civil appeal on March 20, 2008.

  5. Being not satisfied with the concurrent judgment and decree of the two courts below, the Plaintiff preferred second appeal before the High Court which, as noticed above, has been allowed by the Single Judge on September 20, 2010 and the suit has been remanded to the trial court for fresh decision in accordance with law.

  6. The judgment of the High Court is gravely flawed and cannot be sustained for more than one reason. In the first place, the High Court, while deciding the second appeal, failed to adhere to the necessary requirement of Section 100 Code of Civil Procedure and interfered with the concurrent judgment and decree of the courts below without formulating any substantial question of law. The formulation of substantial question of law is a must before the second appeal is heard and finally disposed of by the High Court. This Court has reiterated and restated the legal position time out of number that formulation of substantial question of law is a condition precedent for entertaining and deciding a second appeal. Recently, in the case of Umerkhan v. Bismillabi @ Babulal Shaikh and Ors. Civil Appeal No. 6034 of 2011 decided by us on July 28, 2011, it has been held that the judgment of the High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating the substantial question of law. The legal position with regard to second appellate jurisdiction of the High Court was stated by us thus:

  7. In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating a substantial question of law. The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree appealed against. As a matter of law, a second appeal is entertain able by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof. Section 100 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law afresh or hold that No. substantial question of law is involved at the time of hearing the second appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible without formulating substantial question of law and a decision on such question. This Court has been bringing to the notice of the High Courts the constraints of Section 100 of the Code and the mandate of the law contained in Section 101 that No. second appeal shall lie except on the ground mentioned in Section 100, yet it appears that the fundamental legal position concerning jurisdiction of the High Court in second appeal is ignored and overlooked time and again. The present appeal is unfortunately one of such matters where High Court interfered with the judgment and decree of the first appellate court in total disregard of the above legal position.

  8. Unfortunately, the High Court failed to keep in view the constraints of second appeal and overlooked the requirement of the second appellate jurisdiction as provided in Section 100 Code of Civil Procedure and that vitiates its decision.

  9. Second, and equally important, the High Court upset the concurrent judgment and decree of the two courts on misplaced sympathy and non – existent justification. The High Court observed that the stakes in the suit being very high, the Plaintiff should not be non-suited on the basis of No. evidence. But, who is to be blamed for this lapse? It is the Plaintiff alone. As a matter of fact, the trial court had given more than sufficient opportunity to the Plaintiff to produce evidence in support of its case. As noticed above, after the issues were framed on July 19, 2006, on three occasions, the trial court fixed the matter for the Plaintiff’s evidence but on none of these dates any evidence was let in by it. What should the court do in such circumstances? Is the court obliged to give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be a silent spectator and leave control of the case to a party to the case who has decided not to take the case forward? It is sad, but true, that the litigants seek – and the courts grant – adjournments at the drop of the hat. In the cases where the judges are little pro-active and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realize that adjournments do dent the efficacy of judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit.

  10. No. litigant has a right to abuse the procedure provided in the Code of Civil Procedure. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII Rule 1 Code of Civil Procedure is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII Rule 1 Code of Civil Procedure should be maintained. When we say ‘justifiable cause’ what we mean to say is, a cause which is not only ‘sufficient cause’ as contemplated in Sub-rule (1) of Order XVII Code of Civil Procedure but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. However, the absence of the lawyer or his non-availability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has No. right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit – whether Plaintiff or Defendant – must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don’t, they do so at their own peril. Insofar as present case is concerned, if the stakes were high, the Plaintiff ought to have been more serious and vigilant in prosecuting the suit and producing its evidence. If despite three opportunities, No. evidence was let in by the Plaintiff, in our view, it deserved No. sympathy in second appeal in exercise of power under Section 100 Code of Civil Procedure. We find No. justification at all for the High Court in upsetting the concurrent judgment of the courts below. The High Court was clearly in error in giving the Plaintiff an opportunity to produce evidence when No. justification for that course existed.

  11. In the result, the appeal is allowed and judgment and order of the High Court passed on September 20, 2010 is set aside. There shall be No. order as to costs.

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Sir.. Give us some tips.. To tackle with false cases… Like Dv, 498a etc.

////Sir.. Give us some tips.. To tackle with false cases… Like Dv, 498a etc…./////

My 2 cents worth :
* Fight back * Maintain calm, and fight back legally.
* Read and understand the law, there’s a wealth of info online ; there are 1000s of favourable decisions floating around the web; use them
* Be sure to fight back, what come may !!
* Remember that THEY have to prove their allegations. You don’t have to prove anything as long as you don’t go and file a case
* Think 10 times before filing cases and starting a war. Offense / attack needs 4 times the force and energy as defense. File counters, responses etc., escalate only when you are sure
* Don’t expect the society or courts to be sympathetic to men
* Use a lawyer like a cricket or tennis bat. The game is yours, the strategy is yours, the ideas are yours, but you need a strong bat to hit hard..that’s all. You have lost IF you think the bat will play all by itself.
* Don’t worry too much about rest of the society. Once you break up, rest of the society may look at you like a rapist…but don’t worry, …. You will find 1000s of affected men and families and they are your new friends and society
* Network with other harassed husbands
* Make it a point to help other struggling men.
* Men and families have to save themselves, no one will come to save us …we have fight this
* DON’T leave your job, unless you are 100% sure of another one. DON’T leave
* Remember the biological clock. You can marry, mate and make kids till 70. Your wife can’t after 35 or 40 ..remember that.
* Make your own strategy. This is like war. No two battles are alike, no two armies are alike, so have your own strategy
* Read spiritual books, read management books, health tips, take up to fitness / exercise, walk, jog, play good sports , do whatever to keep your mind and body active. This is NOT the end of the world.
* There are millions of married slaves smiling away in slavery. We are far better. FAR better. We may occasionally frown, but we are free men.
* May GOD be with you
* You have just been chosen by GOD so God IS with you…

Is Death certificate necessary for legal heir certificate ? NO !!

Whether death certificate of predeceased relative is necessary for getting legal heir certificate under bombay regulation Act?

This clearly establishes that a certificate issued under Bombay Regulation VIII of 1827 confers no right to any property. It only indicates a person who (for the time being ) is in the legal management of it. It can always be annulled on proof that another person has a preferable right.

  1. I would imagine that in view of these provisions, it is wholly unnecessary for the Registry to display such extraordinary caution or timidity and to demand ancestral death certificates. A statement made by the Petitioner is that the deceased’s mother predeceased the deceased is surely sufficient, for it is made on oath.
  2. I am also unable to understand why the department insists on death certificate of only one of the parents of the deceased. If this is a requirement of law, then surely the department must ask for the death certificates of both parents of the deceased; and by logical extension, the death certificates of their parents on each side, and so on to the end of the chapter, going back countless generations.

  3. If this is the kind of procedure is to be followed for issuance of mere certificate that confers no right to the property, does not finally determine nor injure the right of any person and the issue of which is only to make it safer for a third party to deal with the Applicant, then no Heirship Certificate will ever be granted by this Court, for every Applicant will probably spent his entire lifetime gathering death certificates going back decades or even centuries.

Bombay High Court

Vinita Ankit Verma vs Ankit Bhagwaticharan Verma … on 16 March, 2016

Bench: G.S. Patel

Citation: 2016(5) ALLMR 412 Bom

This is the usual application for issue of a Legal Heirship Certificate under Section 2 of Bombay Regulation VIII of 1827. The case of this Petitioner is that she is the widow of one Ankit Bhagwaticharan Verma, who died in Kalyan on 11th May 2015.

Durign his lifetime, the deceased lived in Mumbai. The Petitioner says that the deceased died intestate. A copy of his death certificate is annexed. The Petitioner says that the deceased was survived by herself and their two children, a daughter aged 16 years and a minor son aged 8 years. These three names are mentioned in the tabulation below paragraph 4 of the petition. Below this paragraph is one sentence that the mother of the deceased, Ankit’s mother died before him. It is on this statement that the department seems to have taken some sort of objection and asked for production of the death certificate of the deceased’s mother.

  1. I am unable to understand why and on what basis under the Bombay Regulation VIII of 1827 any such objection is being raised. It cannot be an invariable requirement in each and every case. In a particular case if a Court feels, on the facts of that case, that it requires to be further satisfied on about the genuineness of that application, then a Court may certainly in its discretion ask for additional documents. But in doing this, the Court must have regard to the nature of the application and what is intended by it and what the Regulation itself provides.
  • In the first place Regulation 1 of the Bombay Regulation VIII of 1827 says that where a person dies leaving property of any description, the heir, executor or administrator may assume the management or sue for recovery of the property in conformity with law or applicable usage without making any previous application to the Court to be formally recognised.

  • Section 2 then says that if an heir, executor or administrator wishes to have his right formally recognised, an application is to be made to Court. Section 2 is interestingly worded. It reads thus:

  • “2.First.–But if an heir, executor or administrator is desirous of having his right formally recognized by the Court; for the purpose of rendering it more safe for persons in possession of, or indebted to, the estate to acknowledge and deal with him, the Judge, on application, shall 2 of 7 913-MPTL2428-15.DOC issue a proclamation, in the form contained in Appendix A, inviting all persons who dispute the right of the Applicant to appear in the Court within one month from the date of the proclamation and enter their objections, and declaring that, if no sufficient objection is offered, the Judge will proceed to receive of the proof of the right of the Applicant, and, if satisfied, grant him a certificate of heirship, executorship or administratorship.

    Second.–[Publication

    for proclamation]

    Rep. Act, XII of 1873.”

    1. Read together, Sections 1 and 2 can only mean that no heirship application is absolutely necessary in law, but the application is only meant to allow an heir, executor or administrator who wishes to have an heirship certificate at his option so that, in the words of the statute, it is “more safe” for others who are dealing with the deceased’s assets to acknowledge and deal with such heir, executor or administrator.
  • Section 2 also provides for the issuance of proclamation; yet another safeguard. Sections 3 and 4 deal with the process that follows. Section 4 makes it clear that the investigation is of a summary nature and that if the issue is complicated the Court may suspend the proceedings in the application for a certificate until the question has been tried by a regular suit instituted by one of the parties.

  • We are not concerned with Section 5 which deals with the authenticity of a Will. We are, however, concerned with Section 7 which needs to be set out in full. It has three parts and they read thus:

  • “7. First.–An heir, executor or

    administrator, holding the proper

    certificate, may do all acts and grant all deeds competent to a legal heir, executor or administrator, and may sue and obtain judgment in any Court in that capacity, Second.–But, as the certificate confers no right to the property, but only indicates the person who, for the time being is in the legal management thereof, the granting of such certificate shall not finally determine nor injure the rights of any person; and the certificate shall be annulled by the Zilla Court, upon proof that another person has a preferable right.

    Third.–An heir, executor or administrator, holding a certificate, shall be accountable for his acts done in that capacity to all persons having an interest in the property, in the same manner as if no certificate had been granted.”

    1. This clearly establishes that a certificate issued under Bombay Regulation VIII of 1827 confers no right to any property. It only indicates a person who (for the time being ) is in the legal management of it. It can always be annulled on proof that another person has a preferable right.
  • I would imagine that in view of these provisions, it is wholly unnecessary for the Registry to display such extraordinary caution or timidity and to demand ancestral death certificates. A statement made by the Petitioner is that the deceased’s mother predeceased the deceased is surely sufficient, for it is made on oath.

  • I am also unable to understand why the department insists on death certificate of only one of the parents of the deceased. If this is a requirement of law, then surely the department must ask for the death certificates of both parents of the deceased; and by logical extension, the death certificates of their parents on each side, and so on to the end of the chapter, going back countless generations.

  • If this is the kind of procedure is to be followed for issuance of mere certificate that confers no right to the property, does not finally determine nor injure the right of any person and the issue of which is only to make it safer for a third party to deal with the Applicant, then no Heirship Certificate will ever be granted by this Court, for every Applicant will probably spent his entire lifetime gathering death certificates going back decades or even centuries.

  • No one can make such demands unthinkingly. What if the deceased’s mother died decades ago, before the Petitioner married the deceased? What if the mother died somewhere else and not in Mumbai?

    1. I wonder too what the department makes of the second sentence below the table and paragraph 4. Here, the Petitioner states that “the deceased had no other son and daughter save and except those mentioned herein and there are no other heirs left by the deceased”. If the department wants the death certificate of the deceased’s mother then it remains unexplained why the department does not seek the birth certificates of these children or some other obscure proof that he had no other children or no other heirs. The whole purpose of this Petition would be lost.
  • This approach says more about our Courts, none of it very good, and less about a petitioner. We are not here to be mindlessly obstructive and to tell applicants who come before us that this or that cannot be done and to show them the door. We are here because they have a legal problem, for which there is always an answer in law. We are not, in this, to be unmindful of either law or procedure. The former must be followed. But where it contains no fatal restrictions, to invoke the latter, our rules of procedure, to defeat an otherwise proper application is unjust. Our rules must serve the cause, not defeat it. We cannot let the best be the enemy of the good. We certainly cannot allow the handmaiden of justice to become its dominatrix.1

  • Consequently, unless in a particular case the Court after applying its mind and, I expect, for some brief reasons, as is usually done, production is required of a death certificate of a person said to have predeceased the one in respect of whom the Heirship Certificate, the department is not to insist on the production of such documents.

  • Kailash v Nanhku, (2005) 4 SCC 480; reaffirmed and applied in Jagatjit Industries Ltd v The Intellectual Property Appellate Board & Ors., 2016 SCC Online 58.

    1. The present Petition is listed for directions. The departmental requisitions are dispensed with. The statement of the Petitioner that there are no other legal heirs are accepted. The Proclamation is dispensed with. The Petition is made returnable on 23rd March 2016.
  • All concerned to act on an authenticated copy of this order.

  • (G. S. PATEL, J.)

    court CAN permit production of additional evidence EVEN when case is fixed for judgment

    Whether court can permit production of additional evidence when case is fixed for judgment?

    The learned counsel for respondent contended that once arguments are commenced, there could be no re-opening of evidence or recalling of any witness. This contention is raised by extending the convention that once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extra-ordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments.

    1. We may add a word of caution. The power under section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bonafide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.”

    (Emphasis supplied)

    The Apex court has therefore held that the need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. The Apex court further held that if there is abuse of the process of the Court, or if interests of justice require the court do do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard either fully or partly. The Apex Court has crystallized the proposition of law by observing that where the application is found to be bonafide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, that the application is required to be allowed. The Apex Court therefore held that the court is not powerless to consider the application for leading the additional evidence filed by the Plaintiff but the same is circumscribed by the tests which have been laid down by the Apex Court. The paramount consideration if one can say is that the same has to assist in rendering justice.

    IN THE HIGH COURT OF BOMBAY

    Writ Petition No. 7688 of 2013

    Decided On: 18.02.2015

    Mukund Iron Staff Association Co-op. Housing Society Ltd.

    Vs.

    Vasant Ramchandra Patil and Ors.

    Hon’ble Judges/Coram:

    R.M. Savant, J.

    Citation: 2016(3) ALLMR 721

    1. Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.
    2. The writ jurisdiction of this Court is invoked against the order dated 2/8/2013 passed by the learned Judge of the City Civil Court, Greater Bombay by which order the Application being Notice of Motion No.2461 of 2013 filed by the Petitioner/Plaintiff for re-calling of its witness and tendering additional affidavit of examination in chief, for leading evidence in terms of Section 16(c) of the Specific Relief Act, 1963 came to be rejected.

    3. Shorn of unnecessary details, a few facts, which are necessary for the adjudication of the above Petition, can be stated thus :- The Petitioner herein is the original Plaintiff and the Respondents herein are the original Defendants in the suit which was initially filed in this Court being H C Suit No.2526 of 1988. The said suit was filed for specific performance of 4 agreements dated 13/2/1975 in respect of 4 pieces of land which were agreed to be sold to the Plaintiff. The Plaintiff is a Co-operative Housing Society of the employees of one Mukund Iron. It seems that the Plaintiff had also purchased other plots of land from the Defendants. The Defendants, it seems had conveyed the other plots of land which were purchased but in spite of having been called upon to do so had failed to execute the conveyance deeds in respect of the 4 plots of land covered by the agreements dated 13/2/1975. The Plaintiff was therefore constrained to file the suit in question for specific performance.

    4. In the context of the challenge raised in the present Petition, it is required to be noted that in Paragraph 14 of the plaint, the Plaintiff has referred to the letters by which the Plaintiff had called upon the Defendants to execute the conveyance and it has been averred that the Plaintiffs have shown their readiness and willingness to pay the balance of the purchase price viz. Rs.7,67,250/- but the Defendants on one pretext or the other have failed and neglected to come forward to execute the conveyance in respect of the said remaining area particularly the lands covered by the 4 agreements. The said paragraph is followed by paragraphs 15 and 16 in which paragraphs the Plaintiff has further reiterated its case in respect of its readiness and willingness.

    5. The Defendants have filed their written statement pursuant to which the Issues came to be framed by a learned Single Judge of this Court on 3/12/2009 and amongst the issues framed was Issue No.4 which reads thus :-

    “Issue No.4 : Whether the Plaintiffs prove that they were always ready and willing and are still ready and willing to perform their part of the agreements?

    It is thereafter that the Commissioner came to be appointed for recording of evidence by a learned Single Judge of this Court. The affidavit of evidence was filed by the Plaintiff on 13/1/2010 along with the compilation of documents. The documents were numbered on 29/4/2011 whilst the suit was pending in this Court. The Commissioner thereafter recorded the evidence and the 3 sets of Defendants being Defendant Nos.1(A) to 1(C), Defendant Nos.5 to 15, and the Defendant Nos.2(D) and 2(E) have cross examined the Plaintiff’s witness which cross examination covered the aspect of the readiness and willingness of the Plaintiff.

    1. The suit came to be transferred to the City Civil Court, Greater Bombay in October 2012 on the pecuniary jurisdiction of the City Civil Court being enhanced. The Plaintiff closed its evidence on 21/6/2013. The Defendants did not lead any evidence and accordingly closed their evidence. The suit is therefore at the stage where the arguments are to be heard. However, on 29/6/2013 an application came to be filed by the Defendant Nos.2(c) and 2(d) for directions to be issued to the Plaintiff to produce the documents which have been mentioned in paragraph 14 of the plaint. The said documents relate to the readiness and willingness of the Plaintiff. The said application came to be rejected by the Trial Court by an order passed on the same day on the ground that the said application could not be allowed and if the Plaintiff fails to produce the documents mentioned in paragraph 14 of the plaint, then adverse inference would be drawn against the Plaintiff. It is thereafter that the instant Notice of Motion being No.2461 of 2013 came to be filed by the Plaintiff for the reliefs which have been adverted to in the earlier part of this order. In the affidavit in support of the Motion the ground stated therein is that due to inadvertence the averments relating to the documents in support of the case of readiness and willingness were not made in the affidavit in examination in chief filed by the Plaintiff. Hence leave of the Court was sought for recalling of the Plaintiff’s witness and for permission to file additional affidavit of examination in chief of the Plaintiff’s witness.
  • The said application was opposed to on behalf of the Defendant Nos.1(A) to 1(C) by filing affidavit in reply of one Dr. Nitin Vasant Patil. The objection was on the ground of delay as also on the ground that though the documents have been mentioned in the plaint, the Plaintiff has not produced the same, and therefore, the Trial Court has passed an order on the application filed by the Defendant Nos.2 (c) and 2(d) for adverse inference being drawn against the Plaintiff. It is on the said ground that the Notice of Motion was opposed to on behalf of the said Defendant Nos.1A to 1C.

  • The Trial Court considered the said Application being Notice of Motion No.2461 of 2013 and as indicated above by the impugned order rejected the same. The gist of the reasoning of the Trial Court is that since the application is referable to Order XVIII Rule 17 of the Code of Civil Procedure, and since the evidence of the Plaintiff is complete, the Application could not be allowed as the same would amount to filling up the lacuna in the evidence of the Plaintiff. The Trial Court has relied upon the judgment of the Apex Court reported in MANU/SC/0448/2009 : (2009) 4 SCC 410 in the matter of Vadiraj Naggappa Vernekar (Dead) Through LRs v/s. Sharadchandra Prabhakar Gogate. The Trial Court observed that the provisions of Order XVIII Rule 17 of the Code of Civil Procedure can be invoked only for the purpose of clarifying the material that has been placed on record in order to reach a proper conclusion and could not be invoked to fill up the lacuna in the evidence. The Trial Court accordingly by the impugned order dated 2/8/2013 has rejected the said application being Notice of Motion No.2461 of 2013. As indicated above it is the said order dated 2/8/2013 which is taken exception to by way of the above Writ Petition.

  • Heard the learned counsel for the parties. The learned counsel appearing on behalf of the Petitioner Shri S M Oak would contend that in terms of the law laid down by the Apex Court in Vernekar’s case (supra) as also the judgment of the Apex Court reported in MANU/SC/0267/2011 : (2011) 11 SCC 275 in the ] matter of K K Velusamy v/s. N Palansamy, the Trial Court is not powerless in allowing the application for recalling of the witness and for permitting the Plaintiff to adduce additional evidence if interest of justice so requires. The learned counsel for the Petitioner would contend that in the instant case the plaint ex-facie discloses that the averments relating to the readiness and willingness have already been made and therefore this is not a case where the Plaintiff is seeking permission to lead evidence in respect of the readiness and willingness in the absence of pleadings. The learned counsel would contend that it is through inadvertence or mistake that the averments relating to the documents to buttress the case of the Plaintiff as regards the readiness and willingness remained to be incorporated in the affidavit of examination in chief. The learned counsel in support of this contention would placed reliance on the judgment of the Apex Court in Velusamy’s case (supra) and would contend that the paramount consideration has to be the interest of justice. The learned counsel would contend that grave prejudice would be caused to the Plaintiff, if the Application is not allowed as in the absence of the said evidence grave prejudice would be caused to the Plaintiff. The learned counsel would draw the Court’s attention to the fact that pursuant to the agreements to sale and the power of attorney executed by the Defendants, 15 buildings have been constructed in the mid eighties wherein the members of the society are residing, the buildings are constructed on the lands which have been conveyed as also the lands covered by the agreements in respect of which specific performance is sought as all the plots have been amalgamated.

  • Per contra, the learned counsel appearing on behalf of the Respondent Nos.1(a) to 1(c) Shri Merchant would contend that the Plaintiff having been cross examined extensively by the Defendants even on the aspect of readiness and willingness cannot be now permitted to lead additional evidence as the same would amount to Plaintiff being permitted to lead evidence to fill up the lacuna which is there in the evidence. The learned counsel drew this Court’s attention to the cross examination of the Plaintiff’s witness which was conducted before the Court Commissioner on the aspect of readiness and willingness. The learned counsel would contend that though the Apex Court has held that in the interest of justice the course of action of recalling the witness can be permitted. The facts of the case before the Apex Court in Vernekar’s case (supra) are identical to the facts of the present case and therefore the Apex Court in the said case having refused to permit additional evidence from being led, the same analogy would have to be applied to the Plaintiff in the instant case as in the instant case the Plaintiff was very well aware of the material which it had to place on record in respect of the case of the readiness and willingness and having not done so, the Plaintiff now cannot be permitted to adduce additional evidence and bring the said documents on record. The learned counsel sought to distinguish the judgment of the Apex Court in Velusamy’s case (supra) on the basis of the fact that in Velusamy’s case (supra) the facts in respect of which the permission to file additional affidavit of evidence was sought was in respect of the events which had taken place post the filing of the suit and in fact just before the arguments had commenced. Such is not the case in the instant matter, according to the learned counsel and therefore invocation of Order XVIII Rule 17 of the Code of Civil Procedure or Section 151 of the Code of Civil Procedure cannot be permitted.

  • The learned counsel appearing on behalf of the Respondent Nos.9 to 15 Shri Bodke would support the submissions made by the learned counsel for the Respondent Nos. 1(a) to 1(c) Shri Merchant, however, in addition would contend that the instant Notice of Motion was filed after the application filed by the Defendant No.2 (c) and 2(d) was rejected by the Trial Court and is therefore an afterthought. The learned counsel would contend that having regard to the evidence which had come on record on behalf of the Plaintiff, that the Defendants did not choose to lead any evidence.

  • The learned counsel appearing on behalf of the Respondent Nos.2 (d) and 2(e) Shri Khatri would also support the submissions made by the learned counsel for the Respondent Nos.1(a) to 1(c) Shri Merchant, however, in addition would contend that the delay and laches in filing the Notice of Motion has not been properly explained by the Plaintiff, and therefore, this Court would not permit the Plaintiff to invoke Order XVIII Rule 17 of the Code of Civil Procedure or Section 151 of the Code of Civil Procedure.

  • Having heard the learned counsel for the parties, I have considered the rival contentions. The question that is posed in the above Petition is whether the Plaintiff should be allowed to lead additional evidence and thereby re-open its evidence. To answer the said question the facts which have been narrated herein above would have to be re-visited. As indicated above, the suit in question has been filed for specific performance of 4 agreements dated 13/2/1975 in respect of the 4 plots of land. It appears that the owners had also agreed to sell other plot of lands to the Plaintiff’s society, save and except the 4 lands which are the subject matter of the 4 agreements of which specific performance is sought, the other lands have been conveyed to the Plaintiff society. It is also required to be noted that pursuant to the agreements to sale and the power of attorney executed by the owners the Plaintiff society has constructed 15 buildings for its members, which members as mentioned herein above are belonging to the company known as Mukund Iron. It seems that the said construction was carried out after the amalgamation of all the plots. The said buildings have been constructed in the early eighties and are presently in occupation of the Plaintiff’s members. In so far as the agreements in question are concerned, as indicated herein above, in paragraphs 14 to 16 the Plaintiff has pleaded its case of readiness and willingness to perform its part of the agreements and has also pleaded the refusal of the Defendants to abide by the terms and conditions of the agreements. The Plaintiff has also referred to the documents in support of the said case which find place in paragraph 14 of the plaint. No doubt the affidavit of evidence of the witness of the Plaintiff was filed wherein the evidence in respect of the case of the readiness and willingness of the Plaintiff remained to be incorporated. The witness of the Plaintiff has been cross examined also on the aspect of readiness and willingness. The fact that the Defendants have chosen to cross examine the Plaintiff’s witness on the aspect of readiness and willingness shows that the parties were knowing as to in respect of what matters they were litigating. The anxiety of the Defendants can also be seen from the fact that the Defendant Nos. 2(c) and 2(d) had filed the application for a direction to be issued to the Plaintiff to produce the documents which are mentioned in paragraph 14. The Trial Court has rejected the said application by holding that such a direction could not be issued and if the Plaintiff does not produce the said documents then adverse inference can be drawn against the Plaintiff. It is thereafter that the instant Notice of Motion came to be filed for the relief which has been adverted to herein above. In so far as Order XVIII Rule 17 of the Code of Civil Procedure is concerned, the same has been the subject matter of interpretation from time to time. The Apex Court in Vernekar’s case (supra) was also concerned with the application made by the Plaintiff in the said case for being permitted to lead additional evidence. The Apex Court in the facts of the said case had come to a conclusion that the person who had filed the affidavit of evidence was knowing the facts right from the beginning and therefore did not permit the Plaintiffs in the said case to adduce the additional evidence as the Apex Court was of the view that granting permission in the said case would amount to the Plaintiffs being permitted to fill up the lacuna in the evidence.

  • The said provision had also come up before the Apex Court for interpretation in Velusamy’s case (supra). In the said case applications by the Defendant/Appellant under Order XVIII Rule 17 and Section 151 of the Code of Civil Procedure were for recall of the witness and for leading and/or reopening the evidence filed on the basis that after the suit was set down for arguments, the conversation between the Plaintiff and the Defendant and some of the witnesses was recorded, which conversation disclosed that the transaction was in the nature of a money lending transaction which was the case of the Defendant in the suit. Since the compact disc containing the conversation which had taken place at the contemporaneous time when the suit was being heard and since the Defendant/Appellant sought to produce the compact disc as and by way of additional evidence, that the Apex Court deemed it appropriate to allow the application. The Apex Court held that after the deletion of Order XVIII Rule 17A for reopening of evidence and recall of 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. However, in the context of the present case, the observations of the Apex Court in Paragraphs 12, 14, 15 and 19 of the said Report are relevant. The said paragraphs are reproduced herein under for the sake of ready reference :-

  • 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 vs. State of UP-MANU/SC/0065/1960 : AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal -MANU/SC/0056/1961 : AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar -MANU/SC/0013/1963 : AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal – MANU/SC/0263/1966 : AIR 1966 SC 1899; Nain Singh vs. Koonwarjee -MANU/SC/0426/1970 : 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India -MANU/SC/0045/1975 : AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi -MANU/SC/0246/1976 : AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara -MANU/SC/1063/2004 : 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj -MANU/SC/0424/2010 : 2010 (8) SCC 1). 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 necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or 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 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.

    (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.

    1. The amended provisions of the Code contemplate lgc 16 of 21 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.
  • The learned counsel for respondent contended that once arguments are commenced, there could be no re-opening of evidence or recalling of any witness. This contention is raised by extending the convention that once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extra-ordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments.

  • We may add a word of caution. The power under section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bonafide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.”

  • (Emphasis supplied)

    The Apex court has therefore held that the need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. The Apex court further held that if there is abuse of the process of the Court, or if interests of justice require the court do do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard either fully or partly. The Apex Court has crystallized the proposition of law by observing that where the application is found to be bonafide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, that the application is required to be allowed. The Apex Court therefore held that the court is not powerless to consider the application for leading the additional evidence filed by the Plaintiff but the same is circumscribed by the tests which have been laid down by the Apex Court. The paramount consideration if one can say is that the same has to assist in rendering justice. In the instant case, the suit being one for specific performance. The aspect of readiness and willingness assumes importance and can be said to be the defining aspect in so far as the entitlement of the Plaintiff to the relief of specific performance is concerned. As indicated herein above, this is not a case where for the first time the Plaintiff wants to produce the evidence in respect of its readiness and willingness without there being any pleadings. The pleadings are already there in place. The parties are also aware as to in respect of what matters they are litigating. However, in the affidavit in evidence that was filed on behalf the Plaintiff, the evidence in that regard remained to be incorporated. It is required to be borne in mind that the Defendants have conveyed other lands which they had agreed to sell to the Plaintiff except 4 plots of land covered by the 4 agreements of which the specific performance has been sought. The fact that the lands have been constructed upon and that the buildings are standing thereon since the early eighties cannot be lost sight of. The Defendants would be obviously entitled to cross examine the Plaintiff’s witness in respect of the additional evidence. For the delay in filing the Application the Defendants can be compensated by way of costs. However, if the application is not allowed then grave prejudice is likely to cause to the Plaintiff having regard to the facts and circumstances which are prevailing in the present case. The interest of justice therefore requires that the Plaintiff be given an opportunity to lead evidence in respect of its readiness and willingness. The Trial Court seems to have taken a highly technical view of the matter and has rejected the application without taking into consideration the aforesaid facts. In that view of the matter, the impugned order dated 2/8/2013 would have to be quashed and set aside and is accordingly quashed and set aside. The Notice of Motion No.2461 of 2013 would accordingly stand allowed and the following directions are issued :-

    1.] The Plaintiff to file the additional affidavit of evidence only in respect of the aspect of its readiness and willingness latest by 17/03/2015 when the suit in question is to come up before the Trial Court.

    2.] The Defendants would be entitled to cross examine the Plaintiff’s witness and lead rebuttal evidence if they so deem it appropriate.

    3.] The contentions of the parties on merits are kept open for being agitated before the Trial Court at the hearing of the suit.

    4.] Allowing the instant Writ Petition should not be construed as any expression of opinion on the merits of the suit. The suit would undoubtedly be tried on its own merits and in accordance with law.

    5.] In the facts and circumstances of the present case, the Plaintiff to pay costs of Rs.5000/- to each set of Defendants represented by the learned counsel Shri Ibrahim Merchant, Shri Abdul Khatri and Shri V N Bodke. The same to be done on or before 17/03/2015.

    6.] The above Writ Petition is allowed to the aforesaid extent. Rule is accordingly made absolute with parties to bear their respective costs of the Petition.

    7.] The learned counsel appearing on behalf of the Respondent Nos.1(a) to 1(c) Shri Merchant seeks stay of the instant order. In view of the fact that the Plaintiff has been granted time up to 17/03/2015, the said prayer is rejected.