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2013 Supreme(Ori) 364
IN THE HIGH COURT OF ORISSA: CUTTACK
M.M. DAS, J.
W.P.(C) Nos. 7686 and 5980 of 2012
(Date of Judgment : 30.08.2013)
In the matter of applications under Articles 226 and 227 of the Constitution of India.
(In both the cases)
Biswamohan Mishra ... Petitioner
Versus
Radharani Mishra and another ... Opp.Parties
For Petitioner:M/s. Tushar Kumar Mishra and S. K. Sahoo
For Opp.Parties:M/s. Darpahari Dhal, K. M. Dhal, A. Das and M. K. Sahoo
.
Headnote:1. CIVIL PROCEDURE CODE, 1908 - Sec. 151 - Exercise of discretion under the section must be done in extraordinary circumstances where there is no other provision available to exercise such power and such inherent power certainly will not be invoked in favour of the party, who does not pursue the remedy in time.
Inherent powers of the Court are in addition to the power specifically conferred on the Court by the Code. They are complimentary to those powers and, therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It further observed that the inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure. (Para - 13)
2. EVIDENCE - Best evidence of the fact as to what happened before the Court is what is recorded by the Judge in his order - Parties are precluded to challenge the correctness of the statements made by the Court in the order - It can only be changed if the Judge himself says that he incorrectly recorded the order or it did not so happen but by mistake that was recorded or if both the parties agree that what is recorded by the Court is not correct.
(Para - 15)
3. CIVIL PROCEDURE CODE, 1908 - Order 3 Rule 4 - An Advocate giving an underaking in a Court, acts as the agent of the client representing him and he derives his authority from the client on the basis of the Vaklatnama duly signed by the client.
(Para - 15)
JUDGMENT
M.M. DAS, J. : The aforementioned two writ petitions have been filed by the petitioner, who is the plaintiff in C.S. No.18 of 2009 pending before the learned Civil Judge (Junior Division), Ist Court, Cuttack, challenging the order dated 22.3.2012 by which the learned trial Court rejected the two applications filed by the petitioner; one being to recall the order dated 5.1.2010 and the other, rejecting the prayer of the petitioner to allow him to adduce evidence on all the issues.
2.To appreciate the rival contentions, the facts leading to the above writ petitions are required to be exposited, which are as follows :
The petitioner as plaintiff filed the aforementioned suit for a decree of perpetual injunction restraining the defendants - opp.Parties from undertaking any construction in Hal khata No.318, under Hal plot No.270 in mouza Cuttack Sahar, Unit No.35, Jhangirimangala and from interfering with his exclusive right over the said land. The petitioner has also prayed for a decree of mandatory injunction directing the defendants to demolish the construction undertaken by them within 3 ft. of their Hal plot No.271 towards its North from the Southern boundary wall of the plaintiff’s dwelling house standing over Hal plot No.271. The opp.party No.1 filed her written statement and a counter claim seeking a decree declaring that the plaintiff has no boundary wall on the Southern side of his plot No. 270 and the plaintiff and his hencemen be restrained from coming upon plot No.271 or interfering in peaceful possession of the defendant over the said land. The defendant No.1 further prayed for a decree for damages of Rs.9800/- against the plaintiff. The opp.party No.2, who is defendant No.2 also filed his written statement independently denying the plaint allegations. A written statement has been filed by the plaintiff to the counter claim filed by the defendant No.1.
3.The learned trial Court on the pleadings of the parties framed the following issues :
“i. Whether the suit as laid is maintainable ?
ii.Whether there is any cause of action for institution of the suit.
iii.Whether the boundary was existing between Hal Plot No.270 of Hal khata No. 318 and Hal plot No. 271 of Hal khata No.444 of mouza- Unit No.35, Jharjirmangala, Cuttack is a part and parcel of Hal Plot No.270 or Hal Plot No. 271 ?
iv.Whether the defendants threatened to invade the right to or enjoyment of such boundary wall by the plaintiff ?
v.Whether the plaintiff caused any damage to any construction made over Hal Plot No. 271 ?
vi.Whether the plaintiff is entitled to the reliefs prayed for or any other reliefs ?
vii.Whether the defendant No.1 is entitled tot he reliefs prayed for or any other reliefs ?
4.The plaintiff thereupon filed an application under Order 18, Rule 3 C.P.C. to reserve his right for adducing rebuttal evidence on issue Nos.5 and 7 after closure of the evidence by the defendants and to permit him to produce evidence in answer to issue No.3 after examination of an Amin Commissioner. The learned trial Court disposed of the said application by his order dated 24.11.2009, which is to the following effect :
“The plaintiff is required to begin his case in respect of issue Nos.1 to 4 where-after defendant No.1 is to adduce evidence in respect of issue No.5. The plaintiff is permitted to reserve his right in adducing rebuttal evidence in respect of issue No. 5 after the evidence in that respect is adduced by the defendant No.1. Put up on 30.11.09 for the plaintiff to begin the hearing of the suit on Nos. 1 to 4”.
5.It may be mentioned that the plaintiff-petitioner has filed an application under Order 39, Rules 1 and 2 C.P.C. and in the said application, the defendant also filed an application under Order 39, Rule 7 C.P.C. for inspection of the suit land. The learned Court below allowed the application under Order 39, Rule 7 C.P.C. filed by the defendant and directed the defendant to take steps. At this juncture, when the defendant has not taken any step, the
