It clearly appears that the assumption which the learned Judge made is unsustainable, that assumption being that the documents which were allowed to be exhibited were either admitted by the defendant No.1 and the said admission was binding on the defendant No.1. In my view, from the facts narrated above, no such inference can be formed, for an admission must be clear and categorical. On the other hand, here what one finds is that the learned counsel merely said that he has no objection to exhibit the documents while he was asking questions to the first witness produced by the plaintiff. If that be so, it is neither an admission as to documents nor can be treated as an admission of the contents thereof.
IN THE HIGH COURT OF BOMBAY
Civil Revn. Appln. No. 272 of 1972
Decided On: 25.08.1972
Sanjay Cotton Co. Vs. Omprakash Shioprakash and Anr.
Hon'ble Judges/Coram:
B.A. Masodkar, J.
Citation: AIR 1973 Bom. 40
1. This revision is filed by the original defendant No.1 in a suit filed by one M/s. Omprakash Shioprakash, now pending in the Court of Civil Judge Senior Division Akola. It appears that the said plaintiff is seeking recovery of an amount of Rs. 13,489.82 on the allegation that the plaintiff had dealings with defendant No.1 and another defendant No.2 and the amount due is recoverable. He pleads as agreement that defendant No.1 was to clear off the liability of defendant No.2 and inter se between the parties, defendant No.1 was to recover the amount from defendant No.2 and pay the plaintiff. Thus, it appears that between defendants also some agreement is pleaded by the plaintiff. The facts are not very material for the purpose of decision of this revision.
2. After the written statement was put in, in which defendant No.1 appears to have challenged the claim of the plaintiff on all counts, including the genuineness of the transaction, some documents were filed on behalf of the plaintiff. Those documents include some 10 vouchers. It appears that these documents were produced on 16-2-1972 and thereafter the case was fixed sometimes in July for evidence. One Kaluram was produced by plaintiff as witness No.1.
3. It is not in dispute before me and I take it from the learned counsel appearing for both the parties that while this Kaluram was being cross-examined, the counsel appearing for defendant NO.1 the present applicant wanted to ask certain questions relating to these vouchers. At that stage, the learned Judge pointed out to the counsel that the documents were not exhibited and, therefore, he should not ask questions. Upon this it appears that the learned counsel stated on the list of documents that he had no objection for exhibiting these vouchers. Further cross-examination was thereafter allowed by the learned Judge. One Ratanlal was called by the plaintiff as its witness No. 2 the said witness was cross-examined and some questions were put upon these documents also. However, a complaint is being made that defendant No.1 wanted to challenge the contents of the exhibits i.e. these 10 vouchers being Exhs. Nos. 30 to 39 and wanted to put questions in cross-examination for that purpose. The learned Judge appears to have declined pointing out to the counsel that the documents were exhibited. This necessitated an application which is Exh. No. 57. The said application does not give the nature of the questions nor specify the points. The learned Judge passed an order immediately, it appears, by saying that the documents have been admitted to be exhibited by defendant No. 1's lawyers; sufficient questions have also been put in the matter, and thus rejected the application. This order is under challenge. On the same day, Exh. 55 was also put in by which the defendant No.1 sought permission to take photographs of the said document. The application states that after Ratanlal was examined who appears to be P. W. 2, it has become necessary to get those documents examined by the Hand-writing Expert. It may be stated that this Ratanlal is defendant No.2 and was called by the plaintiff to support the case pleaded by them as their own witness. It has already been mentioned that plaintiff has pleaded a specific case relating to inter se liability between these two defendants.
4. Against these two orders refusing the photographic examination through Hand-writing Expert of the documents and also permitting cross-examination, the defendant No.1 has moved this Court in its revisional jurisdiction. It is not also in dispute that these Exhs. 30 to 39 are the vouchers and are the material evidence relating to liability to the defendants and particularly, defendant No.1.
5. Now, Mr. Mohta appearing for the original plaintiff-non-applicant No.1 before me, argues that this is not a fit case where this Court be pleased to exercise its powers under Section 115 of the Code of Civil Procedure. He goes on to argue that the case has not been decided, and it comes in one of the exceptions dealt with by the Supreme Court in the three decisions which he relied upon, being M/s. Misrilal v. Sadasiviah, MANU/SC/0335/1964 : AIR1965SC553 Ratilal v. Ranchhodbhai MANU/SC/0393/1965 : AIR1966SC439 and Baldevdas v. Filmistan Distributors (India) Pvt. Ltd., MANU/SC/0489/1969 : [1970]1SCR435 . In other words, Mr. Mohta contends that this Court has no jurisdiction to entertain the present application.
6. Now these decisions do not cover every case that is contemplated by the terms of Section 115 of the Code of Civil Procedure. It is no doubt true that the provisions of Section 115 confers a supervisory power upon the High Court for the matters enumerated in Cls. (a). (b) and (c) of that section. Clauses (a) and (b) do not furnish any difficulty as they are clear in terms. Neatly stated they can be invoked where a case of want of jurisdiction or non-exercise of jurisdiction is made out. Clause (c) of S. 115, however, since its inception, has proved a cockpit of judicial debate, both as to its efficacy as well as its sweep via the power conferred by this section upon the High Court. As pointed out in the case cited by the learned advocate MANU/SC/0489/1969 : [1970]1SCR435 for application of all these Clauses (a), (b) and (c), however, there must be initially a case decided. The term has now been interpreted by the Supreme Court in that decision and would take in a decision in a pending proceeding which concludes a right of a party before the Court.
7. The provision of Clause (c) of Section 115, if closely scrutinized, would show that it operates upon the action with jurisdiction when such an action is either illegal or is fraught with material irregularity. In Clause Jagdisprasad v. Gangaprasad, MANU/SC/0133/1958 : AIR1959SC492 the Supreme Court observed that if any erroneous decision of a subordinate Court resulted in its exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested in it or acting illegally or with material irregularity in the exercise of its jurisdiction, the case for the exercise of the jurisdiction by the High Court is made out. Similarly, in Keshardeo v. Radhakissan, MANU/SC/0006/1952 : [1953]4SCR136 , the words "illegally or with material irregularity" in Clause (c) were treated to have reference to material defect of procedure. The error while exercising the supervisory powers, of course, must be an error apparent on the face of record (see Satyanarayan v. Mallikarjun, MANU/SC/0169/1959 : [1960]1SCR890 ).
8. In Joy Chand Lal v. Kamalakshya Chowdhry, MANU/PR/0012/1949, the Privy Council considered that the High Court exercised powers under Section 115, Civil P. C. properly when it held that the applicant under Bengal Money-Lenders Act, 1940 was entitled to a relief as the debt, was not a commercial debt. The Privy Council observed that if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested in it, the case arises under Clause (a) or Clause (b) even Clause (c) can be invoked. (See also Lachmi Narayan v. Balmakund, 51 Ind App 321 : MANU/PR/0059/1924 : AIR 1924 PC 198.
9. Therefore, whenever it is shown that the subordinate Court has exercised its powers either illegally or with material irregularity, the provision of Section 115 of the Code of Civil procedure would be attracted. It is clear that this illegality or material irregularity must also arise in the exercise of the jurisdiction. What is an error of procedure as distinguished from error of law, can be seen from the decision mentioned supra in MANU/SC/0006/1952 : [1953]4SCR136 or the Privy Council decision in Umed Mal v. Chand Mal, 53 Ind App 271 : MANU/PR/0087/1926 : AIR 1926 PC 142. The Privy Council accepted that it would be a material irregularity to decide a case in the absence of a necessary party or to summarily dismiss an application of a person to be brought on record as a party. (See Atmaram v. Beni Prasad MANU/PR/0049/1935.
10. It follows, therefore, that if the Court undoubtedly having jurisdiction proceeds in the matters before it contrary to law or with material irregularity in procedure affecting the rights of the parties to a lis and decides a case which would take in also the interlocutory stages, the matter is amenable to the power conferred by Section 115 of the Code of Civil Procedure. In that view, if a party complaining before this Court can successfully show that in the conduct of the proceedings pending in the Lower Court a matter has been concluded with material irregularity or involving illegality. I am of the view that the proceedings can be properly brought before this Court under the provisions of Section 115 of the Code of Civil Procedure. Even on the authorities cited by the learned counsel appearing for the non-applicant No.1 in the matter is still open to be examined. I can not hence accede that the jurisdiction of the High Court is ousted in the present controversy.
11. It is, therefore, necessary to find out what the impugned orders produced at Exhs. 57 and 55 have done in the instant case. It is no more in dispute that the plaintiff if seeking to enforce an obligation against the present applicant-defendant No.1 and to support the liability raised by the plea, he filed certain vouchers. It appears that these vouchers were filed with a list of documents and were not exhibited when the principal witness on behalf of the plaintiff P. W. 1. Kaluram entered the witness-box. No notice as required by the Code of Civil Procedure to admit the documents appears to have been given to the defendant No.1 or defendant No.2. What is now admitted before me is that the counsel appearing for the defendant No.1 wanted to ask certain questions to the witness P. W. 1 Kaluram produced by the plaintiff. The learned Judge did not allow the learned counsel to proceed by asking such questions and it appears observed that unless the documents are exhibited, no questions would be permitted. Presumable, therefore, while the said witness Akluram was under cross-examination, the counsel appearing for defendant No.1 gave no objection for their being exhibited. That is plainly admitted before me for the plaintiff-non-applicant No.1 in this revision. In face, it is stated that no admission as to the geniuses or as to the contents of those vouchers were given at all and what was stated by the counsel for the defendant No.1 was that he had no objection if the documents were exhibited.
12. Taking this as an admission of the documents as well their contents, the learned Judge appears to have made orders now under challenge in this revision Few more developments followed after plaintiff's witness No.1 Kaluram was examined. Plaintiff called defendant No.2 Ratanlal as his own witness and put him as witness No.2. It is now not in dispute that while this witness was under cross-examination by the counsel for defendant No.1 some questions were allowed by the learned Judge to be asked relating to the vouchers which were exhibited under the aforesaid circumstances as Exhs. 30 to 39. The counsel appearing for the applicant in this revision states that, however, as to the contents of those documents and similarly as to their genuineness the learned Judge did not allow the cross-examination. On the other hand, the counsel appearing for the plaintiff before me says that some questions were allowed and some were not. This resulted in filing an application produced at Exh. 57, which is absolutely cryptic, stating that the defendant No.1 wants to cross-examine the witness P. W. 2 Ratanlal as to the vouchers Exhs. 30 to 39. The learned Judge has rejected that application presumably saying that the documents were admitted and that some questions were allowed. This order is under challenge. It appears that simultaneously the application at Exh. 55 was also made whereby the defendant No.1 wanted to take photographs through Handwriting Expert and examine contents of the said vouchers as to their genuineness, and now it is stated before me that some of the columns in those vouchers appear clearly to have been inserted or filled in later on. That application was similarly rejected by the learned Judge on the same day .i.e. 7-7-1972. That order is also challenged before me.
13. Now, there appears to be some confusion with respect to the right of the party to challenge the documentary evidence. It must be stated that a party defending has a right to put every piece of evidence before the Court which would include the circumstances that may ultimately affect the appreciation of evidence in the trial. The purpose of cross-examination is to place all the factors before the Court so as to enable it to come to a just decision on the competing cases and to enable the party to take out material which will help or otherwise show the probability in laying down its defence. This valuable right is a statutory one and is also the part of the basic principles of justice and fairness. I just inroad on this right would not only affect the merits of the case but also disable a party in its own defence. If, therefore, in a given case it is shown that this salutary right has been made illusory by either a misconception of facts or law, it would not only be an error of jurisdiction but also a material irregularity in the procedure.
14. Viewed from this angel, I am unable to see the reasoning behind the orders produced at Exhs. 57 and 55. In face, the learned Judge has given reasons in an extremely summary manner and one is left to surmises what impelled the learned Judge to reject both these requests. It is perfectly possible that the orders were so made because the applications themselves were wanting in particulars nor pointed the matters on which the cross-examination was sought with respect to Exhs. 30 to 39. Similar is the position relating to the application at Exh. 55. Partly, therefore the applicant cannot be absolved from his liability in this particular case.
15. However, one thing is clear and admitted before me that defendant No.1 is seriously contesting the claim of the plaintiff. The said defendant has not accepted the documents as raising any liability nor has given any admission as required by law to its contents. There is no possibility in the record to proceed to judgment on the basis of any admission made by defendant No.1. In other words, the matters between the parties are very much at issue. If that so, then fairness and justice require that all procedural steps including showing that the documents Exhs. 30 to 39 are not genuine or their contents have been inserted after the signatures were obtained, should be allowed to the defence. I take it that both these applications produced at Exhs. 55 and 57 were meant to support such appeal and were, therefore, called for a proper consideration from the Court. The present refusal of these applications affects right of the defence to challenge some important pieces of evidence on the basis of which their liability can either arise or would be negatived. In rejecting these applications, therefore, the learned Judge was affecting the right of the party to put its case before it and this refusal amounts to a clear error apparent on the face of record and also partakes in a material irregularity in procedure.
16. It clearly appears that the assumption which the learned Judge made is unsustainable, that assumption being that the documents which were allowed to be exhibited were either admitted by the defendant No.1 and the said admission was binding on the defendant No.1. In my view, from the facts narrated above, no such inference can be formed, for an admission must be clear and categorical. On the other hand, here what one finds is that the learned counsel merely said that he has no objection to exhibit the documents while he was asking questions to the first witness produced by the plaintiff. If that be so, it is neither an admission as to documents nor can be treated as an admission of the contents thereof. The error thus committed while passing the orders both at Exhs, 55 and 57 is apparent which has consequently vitiated the further rejection of the prayers by the trial Court. Both these orders therefore, are liable to be set aside and are set aside.
17. This, however, cannot conclude the matter. As is apparent, the applications were lacking in the material details. It is, therefore, necessary to allow the defendant No.1, the applicant before me to file proper applications with respect to the matters giving the points on which he wishes to cross-examine the witnesses produced for the plaintiff. Similarly, the application should be detailed enough as to what particular portions of these documents require the examination through an Handwriting Expert and the purpose for photographic inspection through an Expert. After such application is made before the learned trial Court, it will be necessary that the plaintiff is allowed to make a reply to such an application. After hearing the parties, the learned Judge would decide those applications, it will be treated therefore that plaintiff's evidence is not over and the plaintiff will be also entitled to give such additional evidence as may be necessary. Only after plaintiff closes his case, the defendants can be called upon to proceed to evidence in support of the defence.
18. The learned Judge, keeping in view the above observations, will now entertain an application for the purpose of permitting cross-examination, ascertain the points on which such a cross-examination can be permitted, ascertain the purpose on which the Expert opinion is sought and then decide the matter afresh after hearing the parties. This would necessarily involve postponement in the hearing of the trial which adjournments should be compensated for. The applicant (defendant No.1) before me would, therefore, pay as condition precedent for filing such an application before the trial Court a sum of Rs. 150/- to the plaintiff as the costs.
19. In the result, this revision application is allowed. The orders produced at Exhs. 55 and 57 are set aside and the trial Court is directed to proceed in this regard as indicated above. The application to the trial Court will be made expeditiously and the applicant's counsel undertakes to do it within two weeks from today. The said application will be considered and decided by the trial court keeping in view the observations made hereinabove. Although this revision is allowed, it is directed that the applicant shall pay further costs of Rs. 75/- of this revision to the non-applicant No.1 original plaintiff. No costs as far as non-applicant No.2 is concerned.
20. Revision allowed.
Sanjay Cotton Co. vs. Omprakash Shioprakash and Anr. (25.08.1972 - BOMHC) : MANU/MH/0053/1973
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