The decision of the Hon'ble Three Judges of the Supreme
Court in the case of Arjun Singh...Versus...Mohindra Kumar and others
(Supra) was considered by a learned Single Judge of this Court on the
point and this Court deduced the dictum laid down by the Supreme
Court in that judgment vide paragraph No.5 in the case of
Wasudeorao Babasaheb Sonone and another...Versus...Jagannath
Ramlalji Jugele, reported in 1985 Mh.L.J. 565. Paragraph No.5 of
the said judgment reads thus :
“In considering the rival submissions I may
first refer to the Judgment of the Supreme Court (cited
Supra). The said case arose under the provisions of
order IX, rule 7 C.P.C. and in particulars the
interpretation of the expression therein, “where the
Court has adjourned the hearing of the suit exparte”. It
is in this context that the Supreme Court has considered
the concept of hearing in a suit. The Supreme Court
held in paragraph 19 of its Judgment that where once
the hearing starts the C.P.C. contemplates only two
stages in the trial of the suit. 1) Where the hearing is
adjourned and 2) Where the hearing is completed.
Where the hearing is completed the Supreme Court has
held that the parties have no further right to or
privilege in the matter and it is only for the convenience
of the Court that Order XX Rule 1, C.P.C. contemplates
that the Judgment be delivered after some interval after
the hearing is completed. The Supreme Court has
further held in a regard to the facts of the case before it
that when the stage contemplated by order IX Rule 7
has passed the next stage is only the stage of passing a
decree which under Order IX Rule 6 of the Court is
competent to pass.”
8. Thus, in clear terms it has been held by the Hon'ble
Supreme Court that when the hearing in the suit is completed, parties
have no further right to or privilege in the matter and it is for the
convenience of the Court only that the judgment can be delivered after
some interval after the hearing is completed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
MISC. CIVIL APPLICATION (REVIEW) NO.1004/2008
IN
WRIT PETITION NO.2744/2008 (Decided)
Maharashtra Industrial Development Corporation Vs M/s Gajanan Printing Press
Citation; 2009 (1) ALLMR 165 Bom
CORAM:- A.B. CHAUDHARI, J.
Date of pronouncing the judgment :- 30.09.2008
1. Rule returnable forthwith. Heard finally by consent of the
parties.
2. This is an application for review of the judgment rendered
by this Court on 21.8.2008.
3. Learned Counsel for the review petitioners made the
following submissions :
(1) During the course of hearing of the writ petition
from which this review petition has arisen, this Court had expressed
that it was inclined to allow the petition by imposing some costs on
the review petitioners and that is why Counsel for review petitioners
could not put forth all the points in the matter along with judgments
which he wanted to rely upon and therefore, that is the error on the
face of record.
(2) The decision in the case of Arjun
Singh...Versus...Mohindra Kumar and others, reported in 1964
Supreme Court 993 has no application because in that case the suit
had proceeded ex-parte and the provision of Order 9 Rule 7 of the
Code of Civil Procedure fell for consideration of the Supreme Court,
whereas in the instant case the provision of Order 18 Rule 17 of the
Code of Civil Procedure for recall of witness is pressed into service. In
an unreported judgment in Writ Petition No.4844/2006, decided on
17.10.2006, another Single Judge of this Court had permitted recall
even though the case was closed for judgment and therefore, same
course should be adopted by this Court in the present matter also.
(3) The term at any stage of the suit occurring in
Order 18 Rule 17 of the Code of Civil Procedure means and includes
the judgment and therefore, in tune with the judgments which are
cited by learned Counsel, this Court should take the view that at any
stage of the suit includes the stage of judgment. He cited following
decisions :
(i) AIR 1984 DELHI 439 (Suresh
Kumar...Versus...Baldev Raj).
(ii) 1991 Mh.L.J. 1359 (Mafatlal Engineering
Industries Ltd....Versus...Mafatlal Engineering Industries Employees'
Union and others).
(iii) Unreported judgment in Writ Petition
No.4844/2006, decided on 17.10.2006.
(iv) 2004 (2) Mh.L.J. 717 (Baburao s/o Sahebrao
Deshmukh...Versus...Maharashtra Insecticides Limited, Akola and
others).
(v) 2000 (4) Mh.L.J. 482 (Laxman Marotirao
Paunikar...Versus...Keshaorao Rambhau Paunikar).
4. Per contra, learned Counsel for the respondents opposed the
writ petition and argued that this Court relied on the decision of the
Supreme Court and there is no need to interfere with order under
review particularly when the dictum laid down by the said Supreme
Court judgment has been reiterated by another Three Bench decision
of the Supreme Court in the case of Bhanu Kumar
Jain...Versus...Archana Kumar and another, reported in 2005 (2)
Mh.L.J. 839. He, therefore, prayed for dismissal of the review
petition.
5. I have heard Counsel for the rival parties at length and also
gone through the various decisions cited before me. At the outset, I
must dispel the impression under which Advocate Shri Agnihotri is
labouring. During the course of hearing of the writ petition, I had
asked the learned Counsel for respondents what would be amount of
cost if the writ petition were to be allowed. But at the same I did
indicate that I will keep in mind the said option if ultimately I decide
to allow the petition and closed the case for judgment. But then
following the law laid down by Supreme Court, I decided to dismiss
the petition. The Counsel for review petitioners should not have
readily drawn inference as argued before me. During the course of
hearing, Court and the Advocates express several things, but the
deliberations in the Court should not be misutilized in this manner as
submitted by Advocate Shri Agnihotri. But then I decided to hear
Advocate Shri Agnihotri at length on this review petition to his
satisfaction as ultimately no client or Advocate should feel that he was
not heard.
6. Having heard the learned Counsel for the rival parties, I
proceed to record my findings. It is not in dispute that the trial Court
after receiving evidence of plaintiff on affidavit on 26.10.2007
adjourned the suit on certain dates but at no point of time the review
petitioners appeared before the trial Court on those dates and
ultimately the Court closed the suit for judgment. It is not that the
trial Court after having received the evidence on affidavit closed the
suit for judgment on the same day or immediately thereafter, but was
closed for judgment as late as on 30.4.2008 i.e. almost after six
months, but then the review petitioners never appeared before the
case was closed for judgment.
7. The decision of the Hon'ble Three Judges of the Supreme
Court in the case of Arjun Singh...Versus...Mohindra Kumar and others
(Supra) was considered by a learned Single Judge of this Court on the
point and this Court deduced the dictum laid down by the Supreme
Court in that judgment vide paragraph No.5 in the case of
Wasudeorao Babasaheb Sonone and another...Versus...Jagannath
Ramlalji Jugele, reported in 1985 Mh.L.J. 565. Paragraph No.5 of
the said judgment reads thus :
“In considering the rival submissions I may
first refer to the Judgment of the Supreme Court (cited
Supra). The said case arose under the provisions of
order IX, rule 7 C.P.C. and in particulars the
interpretation of the expression therein, “where the
Court has adjourned the hearing of the suit exparte”. It
is in this context that the Supreme Court has considered
the concept of hearing in a suit. The Supreme Court
held in paragraph 19 of its Judgment that where once
the hearing starts the C.P.C. contemplates only two
stages in the trial of the suit. 1) Where the hearing is
adjourned and 2) Where the hearing is completed.
Where the hearing is completed the Supreme Court has
held that the parties have no further right to or
privilege in the matter and it is only for the convenience
of the Court that Order XX Rule 1, C.P.C. contemplates
that the Judgment be delivered after some interval after
the hearing is completed. The Supreme Court has
further held in a regard to the facts of the case before it
that when the stage contemplated by order IX Rule 7
has passed the next stage is only the stage of passing a
decree which under Order IX Rule 6 of the Court is
competent to pass.”
8. Thus, in clear terms it has been held by the Hon'ble
Supreme Court that when the hearing in the suit is completed, parties
have no further right to or privilege in the matter and it is for the
convenience of the Court only that the judgment can be delivered after
some interval after the hearing is completed. It is in this context the
relevant provision of Order 18 Rule 17 of the Code of Civil Procedure
and in particular the term 'at any stage of a suit' occurring in Rule 17
will have to be looked into. Rule 17 of Order 18 of the Code of Civil
Procedure reads thus ;
“17. Court may recall and examine witness. - The
Court may at any stage of a suit recall any witness who has been
examined and may (subject to the law of evidence for the time being
in force) put such questions to him as the Court thinks fit.”
9. Following the said decision of the Supreme Court as
followed by the learned Single Judge of this Court in the case of
Wasudeorao Babasaheb Sonone and another (Supra), in my opinion,
the term at any stage of a suit will have to be mean a stage before the
suit is closed for judgment. Now coming to the decisions cited before
me, I find that in the case of Baburao s/o Sahebrao Deshmukh (Supra)
and Laxman Marotirao Paunikar (Supra), the issue was whether
amendment application under Order 6 Rule 17 of the Code of Civil
Procedure could be allowed where the case is reserved for judgment
and therefore, those decisions will be of no relevance in the present
matter for one more reason that the term used in Order 6 Rule 17 of
the Code of Civil Procedure is 'any proceeding' and any proceeding
means even the proceeding of appeal. Thus, these two decisions are
not on the point of involved in the present matter. In the case of
Suresh Kumar...Versus...Baldev Raj, reported in AIR 1984
Delhi 439, the above term at any stage has been interpreted to mean
any stage before pronouncement of judgment. But then the facts of
that case show that the case was not closed for judgment but at the
stage of arguments application came to be filed under Order 18 Rule
17 of the Code of Civil Procedure. Hence, the said judgment is clearly
distinguishable.
10. Coming to the decision of another Single Judge of this
Court, dated 17.10.2006 in Writ Petition No.4844/2006, I find that in
paragraph No.5 of the said unreported decision, the learned Single
Judge has relied on the interpretation of the words 'at any stage' in the
case of Baburao s/o Sahebrao Deshmukh (Supra), Laxman Marotirao
Paunikar (Supra) and Suresh Kumar (Supra), which I have already
held are not relevant.
11. For all these reasons therefore, I find that the law laid down
by the Apex Court in the case of Arjun Singh...Versus...Mohindra
Kumar and others (Supra) will have to be followed by this Court.
Consequently, I find no merit in the present review application.
The same is, therefore, dismissed. Rule is discharged. No order as to
costs.
JUDGE
There is a prayer for stay of this judgment for a period of
three weeks.
In view of the clearcut legal position discussed in the
judgment, prayer for stay of judgment is rejected.
Court in the case of Arjun Singh...Versus...Mohindra Kumar and others
(Supra) was considered by a learned Single Judge of this Court on the
point and this Court deduced the dictum laid down by the Supreme
Court in that judgment vide paragraph No.5 in the case of
Wasudeorao Babasaheb Sonone and another...Versus...Jagannath
Ramlalji Jugele, reported in 1985 Mh.L.J. 565. Paragraph No.5 of
the said judgment reads thus :
“In considering the rival submissions I may
first refer to the Judgment of the Supreme Court (cited
Supra). The said case arose under the provisions of
order IX, rule 7 C.P.C. and in particulars the
interpretation of the expression therein, “where the
Court has adjourned the hearing of the suit exparte”. It
is in this context that the Supreme Court has considered
the concept of hearing in a suit. The Supreme Court
held in paragraph 19 of its Judgment that where once
the hearing starts the C.P.C. contemplates only two
stages in the trial of the suit. 1) Where the hearing is
adjourned and 2) Where the hearing is completed.
Where the hearing is completed the Supreme Court has
held that the parties have no further right to or
privilege in the matter and it is only for the convenience
of the Court that Order XX Rule 1, C.P.C. contemplates
that the Judgment be delivered after some interval after
the hearing is completed. The Supreme Court has
further held in a regard to the facts of the case before it
that when the stage contemplated by order IX Rule 7
has passed the next stage is only the stage of passing a
decree which under Order IX Rule 6 of the Court is
competent to pass.”
8. Thus, in clear terms it has been held by the Hon'ble
Supreme Court that when the hearing in the suit is completed, parties
have no further right to or privilege in the matter and it is for the
convenience of the Court only that the judgment can be delivered after
some interval after the hearing is completed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
MISC. CIVIL APPLICATION (REVIEW) NO.1004/2008
IN
WRIT PETITION NO.2744/2008 (Decided)
Maharashtra Industrial Development Corporation Vs M/s Gajanan Printing Press
Citation; 2009 (1) ALLMR 165 Bom
CORAM:- A.B. CHAUDHARI, J.
Date of pronouncing the judgment :- 30.09.2008
1. Rule returnable forthwith. Heard finally by consent of the
parties.
2. This is an application for review of the judgment rendered
by this Court on 21.8.2008.
3. Learned Counsel for the review petitioners made the
following submissions :
(1) During the course of hearing of the writ petition
from which this review petition has arisen, this Court had expressed
that it was inclined to allow the petition by imposing some costs on
the review petitioners and that is why Counsel for review petitioners
could not put forth all the points in the matter along with judgments
which he wanted to rely upon and therefore, that is the error on the
face of record.
(2) The decision in the case of Arjun
Singh...Versus...Mohindra Kumar and others, reported in 1964
Supreme Court 993 has no application because in that case the suit
had proceeded ex-parte and the provision of Order 9 Rule 7 of the
Code of Civil Procedure fell for consideration of the Supreme Court,
whereas in the instant case the provision of Order 18 Rule 17 of the
Code of Civil Procedure for recall of witness is pressed into service. In
an unreported judgment in Writ Petition No.4844/2006, decided on
17.10.2006, another Single Judge of this Court had permitted recall
even though the case was closed for judgment and therefore, same
course should be adopted by this Court in the present matter also.
(3) The term at any stage of the suit occurring in
Order 18 Rule 17 of the Code of Civil Procedure means and includes
the judgment and therefore, in tune with the judgments which are
cited by learned Counsel, this Court should take the view that at any
stage of the suit includes the stage of judgment. He cited following
decisions :
(i) AIR 1984 DELHI 439 (Suresh
Kumar...Versus...Baldev Raj).
(ii) 1991 Mh.L.J. 1359 (Mafatlal Engineering
Industries Ltd....Versus...Mafatlal Engineering Industries Employees'
Union and others).
(iii) Unreported judgment in Writ Petition
No.4844/2006, decided on 17.10.2006.
(iv) 2004 (2) Mh.L.J. 717 (Baburao s/o Sahebrao
Deshmukh...Versus...Maharashtra Insecticides Limited, Akola and
others).
(v) 2000 (4) Mh.L.J. 482 (Laxman Marotirao
Paunikar...Versus...Keshaorao Rambhau Paunikar).
4. Per contra, learned Counsel for the respondents opposed the
writ petition and argued that this Court relied on the decision of the
Supreme Court and there is no need to interfere with order under
review particularly when the dictum laid down by the said Supreme
Court judgment has been reiterated by another Three Bench decision
of the Supreme Court in the case of Bhanu Kumar
Jain...Versus...Archana Kumar and another, reported in 2005 (2)
Mh.L.J. 839. He, therefore, prayed for dismissal of the review
petition.
5. I have heard Counsel for the rival parties at length and also
gone through the various decisions cited before me. At the outset, I
must dispel the impression under which Advocate Shri Agnihotri is
labouring. During the course of hearing of the writ petition, I had
asked the learned Counsel for respondents what would be amount of
cost if the writ petition were to be allowed. But at the same I did
indicate that I will keep in mind the said option if ultimately I decide
to allow the petition and closed the case for judgment. But then
following the law laid down by Supreme Court, I decided to dismiss
the petition. The Counsel for review petitioners should not have
readily drawn inference as argued before me. During the course of
hearing, Court and the Advocates express several things, but the
deliberations in the Court should not be misutilized in this manner as
submitted by Advocate Shri Agnihotri. But then I decided to hear
Advocate Shri Agnihotri at length on this review petition to his
satisfaction as ultimately no client or Advocate should feel that he was
not heard.
6. Having heard the learned Counsel for the rival parties, I
proceed to record my findings. It is not in dispute that the trial Court
after receiving evidence of plaintiff on affidavit on 26.10.2007
adjourned the suit on certain dates but at no point of time the review
petitioners appeared before the trial Court on those dates and
ultimately the Court closed the suit for judgment. It is not that the
trial Court after having received the evidence on affidavit closed the
suit for judgment on the same day or immediately thereafter, but was
closed for judgment as late as on 30.4.2008 i.e. almost after six
months, but then the review petitioners never appeared before the
case was closed for judgment.
7. The decision of the Hon'ble Three Judges of the Supreme
Court in the case of Arjun Singh...Versus...Mohindra Kumar and others
(Supra) was considered by a learned Single Judge of this Court on the
point and this Court deduced the dictum laid down by the Supreme
Court in that judgment vide paragraph No.5 in the case of
Wasudeorao Babasaheb Sonone and another...Versus...Jagannath
Ramlalji Jugele, reported in 1985 Mh.L.J. 565. Paragraph No.5 of
the said judgment reads thus :
“In considering the rival submissions I may
first refer to the Judgment of the Supreme Court (cited
Supra). The said case arose under the provisions of
order IX, rule 7 C.P.C. and in particulars the
interpretation of the expression therein, “where the
Court has adjourned the hearing of the suit exparte”. It
is in this context that the Supreme Court has considered
the concept of hearing in a suit. The Supreme Court
held in paragraph 19 of its Judgment that where once
the hearing starts the C.P.C. contemplates only two
stages in the trial of the suit. 1) Where the hearing is
adjourned and 2) Where the hearing is completed.
Where the hearing is completed the Supreme Court has
held that the parties have no further right to or
privilege in the matter and it is only for the convenience
of the Court that Order XX Rule 1, C.P.C. contemplates
that the Judgment be delivered after some interval after
the hearing is completed. The Supreme Court has
further held in a regard to the facts of the case before it
that when the stage contemplated by order IX Rule 7
has passed the next stage is only the stage of passing a
decree which under Order IX Rule 6 of the Court is
competent to pass.”
8. Thus, in clear terms it has been held by the Hon'ble
Supreme Court that when the hearing in the suit is completed, parties
have no further right to or privilege in the matter and it is for the
convenience of the Court only that the judgment can be delivered after
some interval after the hearing is completed. It is in this context the
relevant provision of Order 18 Rule 17 of the Code of Civil Procedure
and in particular the term 'at any stage of a suit' occurring in Rule 17
will have to be looked into. Rule 17 of Order 18 of the Code of Civil
Procedure reads thus ;
“17. Court may recall and examine witness. - The
Court may at any stage of a suit recall any witness who has been
examined and may (subject to the law of evidence for the time being
in force) put such questions to him as the Court thinks fit.”
9. Following the said decision of the Supreme Court as
followed by the learned Single Judge of this Court in the case of
Wasudeorao Babasaheb Sonone and another (Supra), in my opinion,
the term at any stage of a suit will have to be mean a stage before the
suit is closed for judgment. Now coming to the decisions cited before
me, I find that in the case of Baburao s/o Sahebrao Deshmukh (Supra)
and Laxman Marotirao Paunikar (Supra), the issue was whether
amendment application under Order 6 Rule 17 of the Code of Civil
Procedure could be allowed where the case is reserved for judgment
and therefore, those decisions will be of no relevance in the present
matter for one more reason that the term used in Order 6 Rule 17 of
the Code of Civil Procedure is 'any proceeding' and any proceeding
means even the proceeding of appeal. Thus, these two decisions are
not on the point of involved in the present matter. In the case of
Suresh Kumar...Versus...Baldev Raj, reported in AIR 1984
Delhi 439, the above term at any stage has been interpreted to mean
any stage before pronouncement of judgment. But then the facts of
that case show that the case was not closed for judgment but at the
stage of arguments application came to be filed under Order 18 Rule
17 of the Code of Civil Procedure. Hence, the said judgment is clearly
distinguishable.
10. Coming to the decision of another Single Judge of this
Court, dated 17.10.2006 in Writ Petition No.4844/2006, I find that in
paragraph No.5 of the said unreported decision, the learned Single
Judge has relied on the interpretation of the words 'at any stage' in the
case of Baburao s/o Sahebrao Deshmukh (Supra), Laxman Marotirao
Paunikar (Supra) and Suresh Kumar (Supra), which I have already
held are not relevant.
11. For all these reasons therefore, I find that the law laid down
by the Apex Court in the case of Arjun Singh...Versus...Mohindra
Kumar and others (Supra) will have to be followed by this Court.
Consequently, I find no merit in the present review application.
The same is, therefore, dismissed. Rule is discharged. No order as to
costs.
JUDGE
There is a prayer for stay of this judgment for a period of
three weeks.
In view of the clearcut legal position discussed in the
judgment, prayer for stay of judgment is rejected.
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