The Privy Council in the decision reported in Jewan Lal Daga v. Nilmani, AIR 1928 PC 80 had occasion to consider whether the account books produced at the late stage, not admitted in evidence, could be allowed to be perused by the party to refresh his memory at the time of evidence and held in the affirmative. Such a decision was rendered on the ground that refusal to permit a man to refresh his memory by proper relevant contemporaneous documents might lead to grave injustice. In Abdulla v. Emperor, AIR 1933 Lahore 716 (FB), a Full Bench considered the question whether a Magistrate while giving oral evidence can refresh his memory by looking into the written memorandum prepared by him which is inadmissible in evidence as the same was not recorded under Section 164, Cr. P.C. The Court held that the oral evidence of the Magistrate is admissible, but his memorandum is not admissible though he can refresh his memory under Section 159 of the Evidence Act when underexaminadon, by referring to the memorandum. In the decision reported in Mohammad Salabat v. Emperor, AIR 1937 Lahore 475, it was held that a witness who is to be examined on the side of the prosecution can refer to the documents which he had prepared under Section 159 of the Evidence Act and state in Court everything which is material. The Supreme Court in the decision reported in State of Andhra Pradesh v. Cheemalapati Ganeswara Rad, (1964) 3 SCR 297 : (AIR 1963 SC 1850), held that where a witness has to depose to a large number of transactions and those transactions are referred to or mentioned either in the account books or in other documents, there is nothing wrong in allowing the witness to refer to the account books and the documents while questions are put to him. Such a course is specifically permitted under Sections 159 and 160 of the Evidence Act. In Choudhari Ramprasad v. Nathuram, AIR 1923 Nagpur 32, the Nagpur High Court considered the question whether a copy of an unstamped Receipt though inadmissible in evidence, can be used by a witness to refresh his memory by referring to it and held that such a course is permissible.
15. These decisions come to my aid to hold that the course adopted by the Court below is not justifiable and the Court below was incorrect in not permitting the Commissioner to testify any matters mentioned in his report. So, the impugned order is set aside.
Kerala High Court
V.P. Padmanabhan Nair And Ors. vs Grasim Industries, Mavoor And ... on 22 May, 1997
Equivalent citations: AIR 1997 Ker 356
1. In a suit for injunction. O.S. No. 892 of 1987 of the Munsiffs Court, Kozhikode 'filed by the revision petitioners, an application for issue of a commission was filed by them which was allowed and Shri E. N. Gopalakrishnan. an advocate practising at Kozhikode, was appointed as Commissioner. He inspected the properties involved in the suit and filed a report. Thereafter, at the instance of the contesting, defendants, the report was remitted to the same Commissioner with a direction to file a further report.
2. Defendants 3 to 6 filed LA. No. 4310 of 1990 with a prayer to set aside the Commissioner's report and to appoint another Commissioner. The application was allowed. Appointment of a fresh Commissioner was sought for as the former Commissioner, Shri E. A. Gopalakrishnan ceased to practice at Kozhikode.
3. Parties went to trial. Advocate Shri E. N. Gopalakrishnan who was the first Commissioner was summoned by the plaintiffs to be examined as a witness on their side. LA. No. 4425 of 1993 was filed by the plaintiffs for permission to examine the said Commissioner. The application was dismissed on 13-10-1993 whereupon the revision petitioners filed C.R.P. No. 1942 of 1993 against the order in LA. No. 4425 of 1993. This Court as per order dated 8-2-1995 allowed the revision. The order in C.R.P. No. 1942 of 1993 is extracted hereunder:
"By LA. 4425 of 1993 filed under Order 16, Rule 1. C.P.C., the petitioner sought to examine one Gopalakrishnan as his witness. The application was dismissed by the impugned order.
It appears the Court below considered the matter from a wrong angle, and, the legal provision referred seems to be irrelevant. Indeed, Gopalakrishnan was formerly the Commissioner appointed by the Court, and, he had given a report, which was subsequently set aside. Another Commissioner was appointed and a fresh report had been obtained. Indeed Gopalakrishnan cannot give evidence as Commissioner since his report had already been set aside. But then, he was not sought to be summoned as Commissioner but only as a witness to testify to certain faets and this is permissible under Order 16, Rules 1 and 2, C.P.C. The Court below is seen to have misconstrued the scope of the petition, the dismissal of which by the impugned order is unsustainable, and it is hence set aside. Petitioner shall be permitted to summon Gopalakrishnan as a witness as prayed for, subject to the observations made above.
The C.R.P. is disposed of as above." It is clear from the order that Shri Gopalakrishnan was permitted to be examined as a witness on the side of the plaintiffs. Pursuant to the directions of this Court, Shri Gopalakrishnan was summoned as a witness by the plaintiffs and while he was in the witness box and giving evidence with reference to the matters mentioned in his report, objection was taken by the respondents and the Court below as per the impugned order dated 16-10-1995 held that the witness (Shri Gopalakrishnan) will not be permitted to testify touching any of the matters mentioned by him in his report which he filed before the Court as Advocate Commissioner and which has been already set aside.
4. Counsel for the revision petitioners argued that the report submitted by Shri Gopalakrishnan was set aside only due to the reason that he was not available to file a fresh report when his report was remitted back to him and so while he was being examined as a witness, there is no legal impediment in referring to the report to refresh his memory. According to counsel. Sections 159 and 160 of the Indian Evidence Act. 1872 (hereinafter referred to as "the Act") permits such a course. He also argued that even if the document is inadmissible, it could be made use of for collateral purposes.
5. On the other hand, counsel for 'the respondents contended that the revision itself is not maintainable and that the document which has been set aside cannot be made use of for any purpose. In the light of the rival contentions, it has to be decided whether the revision challenging the order by which the witness was not permitted to refer to a previous document to refresh his memory, is maintainable or not.
6. Under Section 115, C.P.C., a revision is maintainable challenging orders of any case decided against which no appeal lies and if the Subordinate Court which passed the impugned order has (a) exercised jurisdiction not vested in it by law, or (b) failed to have exercised the jurisdiction so vested or (c) has acted in the exercise of its jurisdiction illegally or with material irregularity. Section 115 further provides that even if the above conditions are satisfied, the High Court shall not vary or reverse any order made in the course of a suit or other proceeding except where (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. The expression "ease" which appears in the Section is not defined anywhere in the Code. But, going by the Explanation to Section 115, the expression "any case which has been decided" includes any order made or any order deciding an issue, in the course of a suit or other proceeding.
7. In Mathew v. Saramma, (1995) 1 Ker LT 61, a Division Bench of this Court had occasion to consider whether a revision would lie against an order rejecting the request of the defendants to adduce evidence and this Court held that the order is revisable under Section 115, C.P.C. For coming to such a conclusion, this Court relied on the decisions reported in Harish v. Som Nath, AIR 1982 Raj 77; Doshei Dei v. Rama Routa, AIR 1985 Orissa 77 ; Tata Iron & Steel Company v. Rajarishi Exports, AIR 1978 Orissa 179; Baldevdas v. Filmistan Distributors, AIR 1970 SC 406 andS. S. Khanna v. F. J. Dillon, AIR 1964 SC 497.
8. In S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497, it is held that the expression "case" is a word of comprehensive import; it includes civil proceedings other than suits and is not restricted by anything contained in the Section to the entirety of the proceedings in a Civil Court. It is also held therein that the power under Section 115, C.P.C. is to keep the Subordinate Courts within the bounds of their jurisdiction and this power is akin to that of a power to issue a writ of certiorari. In Baldevdas v. Filmistan Distributors, AIR 1970 SC 406, it is held thus (Para 10):
".......... expression 'Case' is not limited in its import to the entirety of the matter in dispute in an action ......... Every order of the Court in the course of a suit does not amount to a case decided. A case is said to be decided, if the Court adjudicates some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115. By overruling an objection to a question put to a witness and allowing the question to be put no case is decided."
In Harish v. Som Nath, AIR 1982 Raj 77, it was held that an order dismissing an application to frame additional issue amounts to a "case decided" and an application under Section 115, C.P.C. is held to be maintainable.
9. The question whether rejection of the plaintiffs prayer to lead further evidence for proof of document was considered to decide whether the same comes within the ambit of Section 115, C.P.C. and the Orissa High Court in the decision reported in Doshei Dei v. Rama Routa, AIR 1985 Orissa 77, held that such an order is revisable under Section 115, C.P.C. A decision on the question of serving interrogatories on the parties under Order 11, Rule 11, C.P.C. was held to be an order revisable under Section 115, C.P.C. see the decision reported in Tata Iron & Steel Company v. Rajarishi Exports, AIR 1978 Orissa 179.
10. From the above decisions, it is clear that a case which has been decided include interlocutory orders passed in the course of a suit which affect the substantial right of parties. If the Subordinate Court fails to exercise jurisdiction vested in it or exercises jurisdiction not vested in it or jurisdiction is exercised illegally or with material irregularity, an application by way of revision under Section 115, C.P.C. will lie to the High Court challenging the order of the Subordinate Court. It is also the consideration of the Court that if the impugned order is allowed to stand, it would occasion failure of justice or cause irreparable injury to the party against whom it is made and if no appeal lies against such an order, a revision is perfectly maintainable.
11. Counsel for the respondents relied on the decision reported in Kanaran Nair v. Madhavan Nair, (1996) 1 Ker LT 162, wherein a Division Bench of this Court held that an order declining to set aside the report of the Commissioner as not revisable. The Division Bench came to such a conclusion on the ground that the order is only interlocutory in nature and the parties are entitled to use other evidence including materials elicited through examination of the Commissioner as a witness for satisfying the Court that the findings in the report are faulty. The Division Bench also held that the impugned order cannot cause failure of justice and so the same is not revisable. Reliance was also placed on the decision reported in Ravindran v. Roja, (1992) 2 Ker LT 102, wherein it was held that an order rejecting an application for reference of disputed documents to a handwriting expert does not constitute the 'case decided' within the meaning of Section 115, C.P.C. In the decision reported in Mytheen Kunju v. Azeez Kunju, (1992) 1 Ker LT 713, it has been held that rejection of an application to set aside the report of the Commissioner does not constitute 'a case which has been decided' within the meaning of Section 115, C.P.C. The facts of the case referred to above are not similar to the facts involved in the case on hand and so those are not authorities which will be helpful to decide whether a revision is maintainable against the order rejecting opportunity to adduce evidence. I am in respectful agreement with the decision reported in Mathew v. Saramma, (1995) 1 Ker LT 61, which is applicable to the facts of the present case. Hence, I hold that the revision is maintainable against the impugned order.
12. The other question to be decided is whether the witness can be permitted to refer to the report to refresh his memory. I am aware that the Commissioner's report has been set aside and so the same cannot he marked in evidence. Still whether such a report could be referred to by the witness invoking the power under Sections 159 and 160 of the Act, is to be considered. Under Section 159 of the Act, a witness may, while under examination, refresh his memory by referring to any writing made by himself at the lime of the transaction concerning which he is questioned, or so soon afterwards that the Corut considers it likely that the transaction was at the lime fresh in his memory. Under Section 160 of the Act, a witness may also testify to fact mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
13. Inspection of the property involved in the suit was made by the Commissioner, Sri Gopalakrishnan who was later being examined as a witness on the side of the plaintiffs. The purpose of examination was to bring out the nature and condition of the plaint schedule properties and the nature of nuisance alleged to have been caused by the defendants. On inspection, the Commissioner has reduced in his report what he had seen in the premises. The report cannot be relied on in evidence as the same was set aside. But, as made clear in the order in C.R.P. No. 1942 of 1993, the witness is not being examined in his capacity as the Commissioner, but as an ordinary witness who has witnesses a fact. As he was being examined as a witness after a long lapse of time, he cannot be expected to remember the meticulous details of what he had seen at the lime of inspection, especially when he has no personal interest in the dispute which resulted in filing the suit. So, to prove what he had seen and noticed at the time of inspection, a reference to his report to refresh his memory is permissible. As a matter of fact the Court below permitted the Commissioner to go through the previous report though the same was set aside. But, the Court below interdicted the Commissioner from deposing any matters touching the dispute contained in the report. If the witness is not permitted to depose anything regarding what he had seen at the time of inspection, there is no earthly use in allowing him to peruse his report. If he is not allowed to depose as a witness regarding what he had seen at the lime of inspection, how can the order of this Court in C.R.P. No. 1942 of 1993 be given effect to. So, to give effect to the order in C.R.P No. 1942 of 1993 and to examine the witness as provided under Order 16, C.P.C., the witness (though not in his capacity at the Commissioner) should be permitted to refresh his memory and to depose what he had seen and noted at the time of inspection. Such a course is called for in the interest of justice. If such a course is not adopted, the plaintiffs will not be in a position to prove the nature and the condition of the properties at the time of filing the suit or at the time when the Commissioner had inspected the same. The real intention behind adopting such a course is to advance the cause of justice and it cannot be said that the defendants will be prejudiced if such a course is adopted as perpetuating injustice is not the intention and purpose of the Court.
14. The Privy Council in the decision reported in Jewan Lal Daga v. Nilmani, AIR 1928 PC 80 had occasion to consider whether the account books produced at the late stage, not admitted in evidence, could be allowed to be perused by the party to refresh his memory at the time of evidence and held in the affirmative. Such a decision was rendered on the ground that refusal to permit a man to refresh his memory by proper relevant contemporaneous documents might lead to grave injustice. In Abdulla v. Emperor, AIR 1933 Lahore 716 (FB), a Full Bench considered the question whether a Magistrate while giving oral evidence can refresh his memory by looking into the written memorandum prepared by him which is inadmissible in evidence as the same was not recorded under Section 164, Cr. P.C. The Court held that the oral evidence of the Magistrate is admissible, but his memorandum is not admissible though he can refresh his memory under Section 159 of the Evidence Act when underexaminadon, by referring to the memorandum. In the decision reported in Mohammad Salabat v. Emperor, AIR 1937 Lahore 475, it was held that a witness who is to be examined on the side of the prosecution can refer to the documents which he had prepared under Section 159 of the Evidence Act and state in Court everything which is material. The Supreme Court in the decision reported in State of Andhra Pradesh v. Cheemalapati Ganeswara Rad, (1964) 3 SCR 297 : (AIR 1963 SC 1850), held that where a witness has to depose to a large number of transactions and those transactions are referred to or mentioned either in the account books or in other documents, there is nothing wrong in allowing the witness to refer to the account books and the documents while questions are put to him. Such a course is specifically permitted under Sections 159 and 160 of the Evidence Act. In Choudhari Ramprasad v. Nathuram, AIR 1923 Nagpur 32, the Nagpur High Court considered the question whether a copy of an unstamped Receipt though inadmissible in evidence, can be used by a witness to refresh his memory by referring to it and held that such a course is permissible.
15. These decisions come to my aid to hold that the course adopted by the Court below is not justifiable and the Court below was incorrect in not permitting the Commissioner to testify any matters mentioned in his report. So, the impugned order is set aside. The Court below will permit the Commissioner to refresh his memory by going through his previous report and to give evidence in court even regarding matters mentioned in the report. Evidentiary value of the evidence of the Commissioner is not considered by me and it is up to the Court below to assess the same in accordance with law.
With this observation, the C.R.P. is allowed.
Order on C.M.P. No. 3808/95 in C.R.P. No. 2249/1995 C dismissed.
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