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2019 Supreme(Pat) 2093
IN THE HIGH COURT OF JUDICATURE AT PATNA
AMRESHWAR PRATAP SAHI, CJ and ASHUTOSH KUMAR, J.
L.P.A. No. 1467 of 2018 In C.W.J.C. No. 19517 of 2013
(18.10.2019)
Shri Vijayanand Puri – Appellant
vs.
Deorani Devi & Ors. – Respondents
For the Appellants : Mr. Vijayanand Puri (in person)
For the Resp. No.5 : M/s Rajendra Narain, Sr. Adv., Ashok Nandan Prasad, Ajay Kumar Sinha.
For the Resp. Nos. : M/s Sumeet Kumar
1, 2, 3, 4, 6 & 7 Singh, Gaurav Prakash.
Headnote:
Constitution of India – Articles 226 and 227 – Any order passed under Article 227 would normally not be amenable to Letters Patent Appellate Jurisdiction – However, Single Judge has exercised his discretion and annulled order of trial court on the ground that documents which were allowed to be produced and proved by appellant-defendant were of no relevance in suit which was being tried and that it was attempted to be produced at a much belated stage, when case was fixed for delivery of judgment – Jurisdiction of trial court trying suit to entertain such application by appellant-defendant was under doubt – Courts have to consistently endeavour to follow a time schedule – In present case, trial court, for no apparent good reason, acceded to request of appellant which primarily appeared to be aimed at delaying conclusion of trial of suit – Hence, even though petition was filed under Article 227 of Constitution of India, Single Judge appears to have exercised powers under Article 226 of Constitution – In that event, present appeal is maintainable. (Para 7)
Constitution of India – Articles 226 and 227 – High Courts have wide powers under Article 226 to issue prerogative writs including Writ of certiorari – While granting writ of certiorari, superior court does not exercise powers of an appellate tribunal, nor does it review or reweigh evidence upon which determination of an inferior tribunal is based – With a writ of certiorari, an order without jurisdiction or a palpably erroneous order is demolished but while doing so, superior court cannot be superimpose its own opinion – There are manifold differences between Articles 226 and 227 of Constitution of India and one of parameters to test whether an order has been passed under Articles 226 or 227 is that under Article 226, High Court can annul or quash an order or proceeding but under Article 227, High Court can, apart from annulling a proceeding in question, can also lay down boundaries within which inferior court is supposed to exercise its jurisdiction in order to rectify any error of law and fact apparent on face of record. (Paras 10 and 24)
Civil Procedure Code, 1908 – Order XVIII Rule 17 – Recall of witness – Under Order XVIII Rule 17, court may, at any stage of suit, recall any witness who has been examined and may put such questions to him as the court thinks fit – Purpose of rule is to enable court, while trying a suit to clarify any doubt which it may have with regard to evidence led by parties – Said provision is not intended to be used to fill up omissions in evidence of a witness who has already been examined – Power under Order XVIII Rule 17 is to be sparingly exercised and in appropriate cases and not as a general rule. (Para 29)
Ashutosh Kumar, J. – The appellant-respondent-defendant (Sri Vijayanand Puri) has put up a challenge to the order dated 16.03.2018 passed in C.W.J.C. No. 19517 of 2013 passed by a learned Single Judge of this Court whereby the order passed by the Trial court viz. Sub-Judge VI, Patna in Title Suit No. 19 of 1996 dated 13.08.2013, recalling the order dated 12.02.2013 whereby by the evidence of defendant no. 1 in the suit was closed and allowing the appellant to prove the documents filed on his behalf, has been set aside.
2. It appears that the respondents, by way of Title Suit No. 19 of 1996, had sought declaration of their title over the suit land and sought a further declaration that the sale deed executed by one Nago Devi in favour of the appellant with respect to disputed land is fraudulent and therefore not binding on the respondents.
3. It further appears from the order impugned that the suit was tried and was fixed for judgment on 20.05.2013. The case was adjourned on that date and another date of 03.06.2013 was fixed for judgment. On that day, case laws were cited by the respondents-plaintiffs and the appellant-defendant took time for filing judgments in reply. As a result, the case was adjourned to 05.06.2013 for hearing and judgment. The matter was again posted on 12.06.2013 for judgment. On that date, the appellant sought an adjournment for further arguments on the question of law, which prayer was allowed and the case was fixed for arguments on 01.07.2013 at the instance of the appellant.
4. It further appears that the appellant had filed certain documents along with the petition under Order XVII Rule 17 read with 151 of the CPC for recalling the order dated 12.02.2013 whereby the evidence of defendant no. 1 in the suit was closed. The aforesaid prayer of the appellant was allowed and an opportunity was given to him to prove the documents by adducing evidence.
5. The learned Single Judge, on finding that the documents brought on record or referred to in the written statement had no concern with the issues involved in the suit, held that there was no explanation available with the appellant-defendant for not producing such documents on earlier occasion. The other documents which were brought on record by the appellant-defendant were the certified copy of the judgment of Title Suit No. 4 of 1986 which was a probate case preferred by one Faguni Devi against the appellant for grant of probate/letter of administration with respect to property bequeathed by Nago Devi by virtue of a registered deed of will dated 30.11.1977. In the aforesaid probate case, which on objection was converted into a title suit, the registered deed of will and the registered deed of cancellation of will filed by the appellant-defendant was in issue. The learned Single Judge also found that the appellant had contested the aforesaid probate case which was dismissed.
6. Thus finding that there was no need of those documents for adjudication of issues involved in the present title suit and that even though such documents were available with the appellant-defendant from before, and even them it was not brought on record, the learned Single Judge held that the trial court had committed an error of law in allowing such a prayer of the appellant-defendant.
The order of the trial court therefore was set aside.
Hence the present appeal.
7. The writ petition by the respondent-plaintiff was initially filed under Article 226 of the Constitution of India but it was converted into one under Article 227. Any order passed under Article 227 would normally not be amenable to Letters Patent Appellate Jurisdiction. However while hearing the learned counsel for the parties, this Court was of the view that the nature and tenor of the order passed by the learned Single Judge was that of a grant of certiorari under Article 226 and not under Article 227 which is a supervisory jurisdiction. The prima facie reason for us to come to the aforesaid view is the manner in which the order
