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Chairman Notified Area Council and anr. Vs. Kudini Lingaraju Patra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 154 of 1972
Judge
Reported inAIR1974Ori17; 39(1973)CLT641
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 18, Rule 17
AppellantChairman Notified Area Council and anr.
RespondentKudini Lingaraju Patra
Appellant AdvocateG. Rath, ;R.K. Patra and ;A.K. Tripathi, Advs.
Respondent AdvocateC.V. Muthy, Adv.
DispositionRevision allowed
Cases ReferredManchar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal.
Excerpt:
.....assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure express-ly provided in the code. i am clearly of opinion that this is lust a case where section 151, c. is fully applicable and the court, after being satisfied that the advocate for plaintiffs could not be present in court at the time when d......4 documents and closed his evidence. those d. ws. were examined in chief but could not be cross-examined as the plaintiff's lawyer was not present at that time. as soon as the defence evidence closed, the plaintiff no. 1 filed a petition at 8.30 a. m. for time which was rejected. immediately thereafter the plaintiffs lawyer appeared in court and moved a petition under section 151, c. p. c. explaining his personal difficulty which prevented him from attending the court in time and made a prayer for recalling the d. ws. for cross-examination. the trial court found that there were sufficient grounds for the non-appearance of the plaintiff's lawyer at the time when d. ws. were examined, but he was of opinion that the petition under section 151. c. p. c. was not maintainable and.....
Judgment:
ORDER

S.K. Ray, J.

1. This application is by the plaintiffs and is directed against the order dated 27-4-1972 of the Munsif. Bhanjanagar passed in T. S). No. 20 of 1969 refusing their prayer for recalling the witnesses examined in chief on behalf of the defendant for the purpose of cross-examination.

2. The facts leading upto the impugned order under revision may now be briefly stated. The petitioners filed T. S. No. 20/69 against the opposite party for eviction. After closure of the evidence from their side, the suit was posted to 10-4-1972 for examination of the defence witnesses. That was a morning Court day. The defendant began leading evidence from his side during the first hour of that day. He examined 3 PL Ws. and exhibited 4 documents and closed his evidence. Those D. Ws. were examined in chief but could not be cross-examined as the plaintiff's lawyer was not present at that time. As soon as the defence evidence closed, the plaintiff No. 1 filed a petition at 8.30 A. M. for time which was rejected. Immediately thereafter the plaintiffs lawyer appeared in Court and moved a petition under Section 151, C. P. C. explaining his personal difficulty which prevented him from attending the Court in time and made a prayer for recalling the D. Ws. for cross-examination. The trial Court found that there were sufficient grounds for the non-appearance of the plaintiff's lawyer at the time when D. Ws. were examined, but he was of opinion that the petition under Section 151. C. P. C. was not maintainable and accordingly, dismissed it. In doing so he relied upon a decision of this Court in (1961) 27 Cut LT 326 in preference to the decision of the Andhra Pradesh High Court the case of Sultan Saleh Bin Omer v. Vijayachand Sirimal, AIR 1966 Andh Pra 295.

3. The situation which arose in the present case, as disclosed by the facts recounted above, is one for which no specific remedy has been provided in the Code of Civil Procedure. The , only far-reaching remedy which could be conceived of is to allow the case to be disposed of against the plaintiffs and then to appeal from that decree and get the lacuna removed. Such a remedy would merely protract litigation and cause harassment to the parties concerned. It is to meet such situations which are essentially procedural that Section 151 has been enacted recognising the inherent power of the court to make necessary orders for ends of justice. The inherent power of the Court recognised in Section 151. C. P.C. is very wide and is intended to be exercised at any etage of the litigation for ends of justice or to prevent abuse of process of Court subject to the only rider that if there is a specific provision in the Code of Civil Procedure to meet a particular situation it cannot be invoked. In the case of Padam Sen v. State of Uttar Predesh, AIR 1961 SC 218 the Supreme Court has said that-

'The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary 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 is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure express-ly provided in the Code.'

In another case of Manchar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal. AIR 1962 9C 527, the Supreme Court in dealing with Section 151. C. P. C. has expressed its opinion as follows:

'Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the case of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code.' Thus the inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code.

4. There is no other express provision in the Code, as already been stated above, which is adequate to meet the situation which arises in the present case. The relevant provision is Order 18, Rule 17, C. P. C. which gives a discretion to the Court to recall at any stage any witness who has been examined and may put such questions to him as he thinks fit. This provision does not enable a party to claim the privilege of recalling witnesses examined in chief by his opponent for the purpose of cross-examination. In the circumstances. I am clearly of opinion that this is lust a case where Section 151, C.P.C. is fully applicable and the Court, after being satisfied that the Advocate for plaintiffs could not be present in Court at the time when D. Ws. were being examined in chief for reasons beyond his control, should have recalled the witnesses and allowed him to cross-examine them. Thus, in my opinion, the Munsif was wrong in rejecting the application under Section 151, C.P.C. The case of Andhra High Court (AIR 1966 Andh Pra 295) is just a case in support of this view which I am taking. That is a more reasonable view than the one expressed by a Single Judge of this Court in (1901) 27 Cut LT 326. Further the view expressed there does not appear to me to be in accord with the view of the Supreme Court in the two cases referred to above regarding the inherent power of the Court recognised under Section 151, C.P.C, It also appears to me to be distinguishable on facts. In that case the plaintiffs witnesses were examined and discharged in absence of the defendants and their lawyers, on 14-4-1960 and immediately thereafter arguments were heard and the case was posted to 1-5-1960 for judgment. It is only thereafter that a petition under Section 151, C.P.C. was filed to reopen the case. In the present case the defence evidence had only closed, and the arguments had not yet been commenced. There was practically no time lag between the closure of defence evidence and the filing of the petition from time by plaintiff No. 1 immediately followed by the petition under Section 151, C. P. C.

5. I would, therefore, set aside the order of the Munsif and direct him to recall the D. Ws. and give the plaintiffs ample opportunity for cross-examining them and thereafter to dispose of the suit in accordance with law.

6. In the result, therefore, this revision is allowed with costs which is assessed at two gold mohurs.


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