Jehangir Gopal v. Dr. Salim Muhammed

``` OP(C) NO. 305 OF 2023 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 ``` ## **`OP(C) NO. 305 OF 2023`** ## **`OS 47/2017 OF PRINCIPAL SUB COURT / COMMERCIAL COURT, TRIVANDRUM PETITIONER/S:`** ``` JEHANGIR GOPAL AGED 64 YEARS RESIDING AT 401 GREEN AVENUE 77 MOSQUE ROAD FRASER TOWN BANGALORE, PIN - 560005 BY ADVS. C.S.MANU T.B.SIVAPRASAD C.A.ANUPAMAN DILU JOSEPH C.Y.VIJAY KUMAR MANJU E.R. ANANDHU SATHEESH ALINT JOSEPH ``` ## **`RESPONDENT/S:`** ``` DR.SALIM MUHAMMED, AGED 65 YEARS RESIDING AT FLAT NO 14B SFS ROYAL GREEN, KANAKA NAGAR KOWDIAR THIRUVANANTHAPURAM, PIN - 695003 BY ADV THOUFEEK AHAMED ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 305 OF 2023 ``` ``` 2 ``` ## **JUDGMENT** Aggrieved by Ext.P4 order passed in I.A. No.2/2023 in O.S.No.47/2017 by the Court of the Principal Subordinate Judge, Thiruvananthapuram, the defendant in the suit has filed the original petition. The respondent is the plaintiff. 2. The relevant skeletal facts, leading to Ext.P4 order, are: (i) The respondent has filed the suit against the petitioner for a decree for recovery of money. The petitioner has resisted the suit through Ext.P2 written statement. (ii) The parties went to trial. The respondent was examined as PW1 and Exts.A1 to A10 were marked through him. He was cross-examined by the petitioner and the case was adjourned for the evidence of the petitioner to 16.01.2023. (iii) On 11.01.2023, the petitioner filed I.A. No.2/2023 (Ext.P3), to recall the respondent for further crossexamination. The respondent did not file any written ``` OP(C) NO. 305 OF 20233 ``` objection to the application. However, he produced the decision of this Court in **Mathew Lawrence v. Rockey C. Neroth and another [ILR 2020 (4) Ker. 939]** . (iv) The court below, by the impugned Ext.P4 order, rejected Ext.P3 application. (v) Ext.P4 order is improper, illegal and irregular. Hence, the original petition. 3. Heard, Sri. C.S.Manu, the learned counsel appearing for the petitioner and Sri.Thoufeek Ahamed, the learned counsel appearing for the respondent. 4. Sri.C.S.Manu assailed the impugned order by relying on the decision of this Court in **Mathew Lawrence** (supra) by making a reference to paragraph-24 of the judgment, wherein it is held that the inherent power of a court under Section 151 of the Code of Civil Procedure, 1908, (in short ‘Code), can be invoked sparingly, subject to its limitations. Therefore, the court below was bestowed with abundant power to allow Ext.P3 application. Thus, the rejection of Ext.P3 application by the impugned order is unsustainable in law. ``` OP(C) NO. 305 OF 20234 ``` 5. Sri.Thoufeek Ahamed countered the above submissions by placing reliance on the decisions of the Honourable Supreme Court in **Ram Rati v. Mange Ram (D) Through Lrs. and others [2016 KHC 6187], Velusamy K.K. v. N. Palanisamy [2011 KHC 4302]** and **Bagai Construction v. M/s.Gupta Building Material Store [2013 KHC 4160]** to drive home his contentions that, when the substantive provision in the Code prohibits a particular act from being done, the inherent powers of the Court under Section 151 of the Code cannot be exercised. According to him, in view of the explicit declaration of law in **Ram Rati** (supra), Ext.P3 application by no stretch of imagination can be allowed. Therefore, there is no error in Ext.P4 order, and the original petition is only liable to be dismissed. 6. The question is, whether there is any error in Ext.P4 order. 7. Undisputedly, the parties went to trial. The respondent was examined as PW1 on 10.01.2023 and the suit was adjourned for the cross-examination of the ``` OP(C) NO. 305 OF 2023 ``` ``` 5 ``` petitioner to 16.01.2023. 8. It is at the above juncture, the petitioner filed Ext.P3 application to recall the respondent for the purpose of clarifying certain matters in his oral testimony. 9. The court below, by the impugned Ext.P4 order, held as follows: “5. In the affidavit of the petitioner nothing has been specifically stated with regard to the point which he intend to further cross examine PWI. On going through the cross examination of PW1 it is found that the every aspect like transaction between the parties, consideration and execution of the cheque in question were touched. The case of the defendant was also put to PW1 while he was in the witness box. It is found from the proceedings that the parties have got sufficient time to prepare for the trial of the case. It is to be noted that a witness cannot be recalled for mere asking and the power to recall is to be exercised only in exemptional circumstances. No sufficient ground is stated in the affidavit of the petitioner for recalling PW1. The application filed by the applicant lack in details. Even the averments made ex- facie lack bonafide. The reason shown for recalling a witness has to be reasonable or plausible, so as to persuade the Court to believe that the said reason stated is not only true, but is worthy of exercising judicial discretion in favour of the applicant. Thus it is found that there is no merit in the present application.” ``` OP(C) NO. 305 OF 2023 ``` ``` 6 ``` 10. The Honourable Supreme Court in **Ram Rati** (supra), after a complete survey of all the earlier judgments on the point, in paragraphs 14 to 18, has held as follows: “14. The rigour under Rule 17, however, does not affect the inherent powers of the court to pass the required orders for ends of justice to reopen the evidence for the purpose of further examination or cross-examination or even for production of fresh evidence. This power can also be exercised at any stage of the suit, even after closure of evidence. Thus, the inherent power is the only recourse, as held by this Court in K.K. Velusamy (supra) at paragraph-11, which reads as follows: “ **11. There is no specific provision in the Code enabling the parties to reopen the evidence for the purpose of further examination-in-chief or crossexamination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court.** In the absence of any provision providing for reopening of evidence or recall of any 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 to reopen ``` OP(C) NO. 305 OF 2023 ``` ``` 7 ``` the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.” 15. After surveying the various principles stated by this Court on Section 151 from 1961, in K.K. Velusamy (supra), they have been succinctly summarized as follows under paragraph-12: “xxx xxx xxx xxx xxx xxx **a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises 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 recognises 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 coextensive 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** ``` OP(C) NO. 305 OF 2023 ``` ``` 8 ``` **provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in 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 in 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** ``` OP(C) NO. 305 OF 2023 ``` ``` 9 ``` **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.** ” 16. Some good guidance on invocation of Section 151 of the CPC to reopen an evidence or production of fresh evidence is also available in K.K. Velusamy (supra). To quote paragraph-14: “14. The amended provisions of the Code contemplate 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 reopening 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 on 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.” 17. Vadiraj (supra) and K.K. Velusamy (supra) have also found affirmation by this Court in Bagai Construction Through its Proprietor Lalit Bagai v. Gupta Building Material Store3. ## **18. The settled legal position under Order 18 Rule** ``` 10 ``` ``` OP(C) NO. 305 OF 2023 ``` **17 read with Section 151 of the CPC, being thus very clear, the impugned orders passed by the trial court as affirmed by the High Court to recall a witness at the instance of the respondent “for further elaboration on the left out points”, is wholly impermissible in law.** ” 11. A reading of _ratio decidendi_ laid down in **Ram Rati** (supra) extracted above, leads me to the only conclusion that a party does not have a right to invoke the inherent powers of courts under Section 151 of the Code to re-open and re-examine the witness for further elaboration on the points that have been left out. 12. It is trite; the exercise of the power of superintendence of this Court under Article 227 of the Constitution of India is to keep the courts of the District Judicature within their bounds of authority and to see that they do the duty as expected of them. The High Court is not vested with any unlimited prerogative to correct all decisions made within the limits of the jurisdiction of the subordinate courts. The exercise of this power and interfering with the orders of the courts is restricted to ``` OP(C) NO. 305 OF 2023 ``` ``` 11 ``` cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also nigh settled that while acting under this Article, the High Court is not acting as an appellate court to substitute its judgment in place of the subordinate courts. On a conspectus of the facts and circumstances of the case, the law referred to above and the findings rendered above, this Court has no hesitation to confirm the impugned order and endorse that the court below has rightly rejected Ext.P3 application. The said order does not warrant any interference under Article 227 of the Constitution of India. The original petition fails and is, hence, dismissed. ## **Sd/-** ## **C.S.DIAS, JUDGE** okb/6.3.23 //True copy// P.S. to Judge ``` OP(C) NO. 305 OF 202312 ``` ## **`APPENDIX OF OP(C) 305/2023`** ``` PETITIONER EXHIBITS Exhibit P-1TRUE COPY OF THE PLAINT DATED 27-03-2017 IN O.S NO.47 OF 2017 ON THE FILE OF PRINCIPAL SUB-COURT, THIRUVANANTHAPURAM FILED BY THE RESPONDENT Exhibit P-2TRUE COPY OF THE WRITTEN STATEMENT IN OS NO.47 OF 2017 ON THE FILE OF THE PRINCIPAL SUB-COURT, THIRUVANANTHAPURAM DATED 2-8-2017 FILED BY THE PETITIONER Exhibit P-3TRUE COPY OF THE I.A NO.2 OF 2023 IN O.S NO.47 OF 2017 ON THE FILE OF PRINCIPAL SUB- COURT, THIRUVANANTHAPURAM Exhibit P-4TRUE COPY OF THE ORDER DATED 20-1-2023 IN I.A NO.2 OF 2023 IN O.S NO.47 OF 2017 PASSED BY THE COURT OF PRINCIPAL SUB-JUDGE, THIRUVANANTHAPURAM ```