AI Structured Summary
Not yet generated for this judgment
Judgment
Gurmeet Singh Sandhawalia, J.—The present revision petition has been preferred under Article 227 of the Constitution of India by the petitioner-defendant and challenge has been laid to the judgment dated 14.6.2011 (Annexure P/2) passed by the Addl. District Judge, Muktsar wherein the Lower Appellate Court remanded the matter on the appeal filed by the plaintiff to the trial Court directing it to first decide objections with regard to exhibition of documents Ex. P1 to Ex. P131/A and thereafter decide the suit after statutory period of limitation to file revision had expired. Challenge has also been laid to the subsequent order passed by the trial Court dated 19.8.2011 (Annexure P/3) vide which the aforesaid documents are permitted to be read into evidence at rebuttal stage and the objections raised by the defendant for not exhibiting the said documents were dismissed. Counsel for the petitioner-defendant has vehemently relied upon a Division Bench judgment of this Court in Surjit Singh and others v. Jagtar Singh and others, (2007-1)145 P.L.R. 552 to submit that under Order 18 Rule 3 CPC plaintiff could not be permitted to lead evidence in rebuttal on the issues for which burden of proof was on it. It is the case of the petitioner-defendant that the plaintiff had concluded his evidence on 15.4.2002 and had not reserved any right and thereafter the defendant concluded his evidence on 20.9.2002 and the documents in question were in the knowledge of the plaintiff which had never been placed on record and they could not be allowed to be read into evidence at rebuttal stage.
The dispute pertains to a suit for recovery which was filed by the respondent-plaintiff alleging that it was a commission agent and loan of Rs. 84, 364/- had been advanced to the petitioner-defendant. Accordingly, the above amount was claimed along with interest at the rate of 2% per month and a sum of Rs. 8,25,000/- was claimed from the defendant. The defence of the defendant was that a sum of Rs. 1,40,000/- was due against him towards the plaintiff firm and signatures have been obtained on blank papers on 12.12.1998 and he had been detained at the instance of a local MLA. Many signatures were obtained forcibly on many blank papers, registers and Bahies and also got executed an agreement to sell dated 17.12.1998 to show that an earnest money of Rs. 5 lacs had been paid to him. Thus, the documents are forged and fabricated and the same are got signed from him by coercion and pressure. The plaintiff firm examined Amarjit Singh, Accountant as P.W. 1 whereas Anil Kumar, partner was examined as PW2 and the defendant had examined himself as D.W. 1 and two more witnesses namely Balwinder Singh and Swaran Singh as D.W. 2 and D.W. 3 respectively. In rebuttal the plaintiff firm tendered documents Ex. P1/A to Ex. P131/A which was objected to by the counsel for the defendant and vide order dated 27.7.2004 the trial Court kept it open to be decided at the time of final arguments. The matter was brought to this Court by the defendant in Civil Revision No. 4299 of 2005 and this Court directed that the objections regarding exhibition of documents Ex. P1/A to Ex. P131/A be decided first and thereafter the suit be decided on merits.
The trial Court recorded the statement of counsel for the defendant that the objections be decided at the final stage and thereafter while deciding the suit passed a short order on 14.5.2005 whereby the objections of the defendant were sustained and the documents Ex. P1/A to Ex. P131/A were ordered to be not read into evidence as having not been proved as per law. The suit was dismissed on the same day on merits on the basis of short order passed.
The appeal was preferred by the plaintiff wherein it was noticed that there was direction by this Court and therefore, the trial Court had nullified the order of this Court by getting the statement of counsel for the defendant recorded and without affording an opportunity to the plaintiff to approach this Court. Accordingly, the matter was remanded to first decide the objections.
In pursuance of the remand order, the Addl. Civil Judge (Senior Division), Muktsar noticed that P.W. 1 Amarjit Singh, Accountant brought the original Rokar for the year 1993-94 and entries mentioned therein were exhibited as Ex. P1 to Ex. P7. The said entries bore the signatures of Anil Kumar, partner and the entries had been made for the amount deposited on 19.7.1993, 21.8.1993 and 6.9.1993 which were exhibited as Ex. P8 to Ex. P10. The original Rokar for the year 1994-95 showing the signatures of the petitioner/defendant in token of receipt of money and correct copies of translation of the same were Ex. P38 to Ex. P41 and the petitioner/defendant had deposited the amount on 5.5.1994, 6.5.1994 and 7.5.1994 and the translation of the same were Ex. P42 to Ex. P44. Similarly Rokar for the year 1995-96, 1996-97 and the original Khata from the year 1993-94 to 1996-97 had been proved on record as Ex. P45 to Ex. P131 and translated copies were Ex. P1 to Ex. P131. Accordingly placing reliance upon the statements of the witnesses of the plaintiff and their cross-examination the trial Court came to the conclusion that the true translated copies Ex. P1 to Ex. P131 regarding the entries in the Rokar Bahi Khata had been placed on record but the true photocopies had not been placed on record since the original documents have not been produced. The documents Ex. P1/A to Ex. P131/A were allowed to be produced in rebuttal evidence and the objections raised by the defendant for not exhibiting documents were accordingly dismissed. It is in such circumstances this Court is now to examine whether the order passed by the trial Court was justified in pursuance of the direction issued by the Lower Appellate Court.
That first question that arises is that whether the order dated 14.6.2011 passed by the Lower Appellate Court is revisable under Article 227 of the Constitution of India specially keeping in view the fact that the under Order 43 Rule 1(u) CPC the appeal is maintainable against the said order. Order 41 Rules 23 and 23-A and Order 43 Rule 1(u) CPC read as under:--
"23. Remand of case by Appellate Court:--Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23A. Remand in other case:--Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.
"Order 43 Rule (1). Appeals from orders.
An appeal shall lie from the following orders under the provisions of Section 104, namely:--
(a) xxx xxx xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx xxx xxx xxx
(t) xxx xxx xxx xxx xxx xxx xxx xxx
(u) an order under rule 23 [or rule 23A] or
Order 41 remanding a case, where an appeal would lie from the decree of the Appellate Court."
Thus, it is apparent that the order passed by the Lower Appellate Court whereby it had remanded the matter was appealable before this Court and the present revision petition would not maintainable. The Apex Court in Narayanan Vs. Kumaran and Others, while discussing the provisions of above said provision held that an appeal would lie. Relevant observations read as under:--
"It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the Appellate Court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand where it is to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under order 43 Rule (1) clause (u) should be heard only on the ground enumerated in Section 100. We, therefore, accept the contention of Mr. T.L.V. Iyer and hold that the appellant under an appeal under order 43 Rule (1) clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the Lower Appellate Court."
The issue was clarified by the Apex Court in Jegannathan Vs. Raju Sigamani and Another, by holding that from an order of remand passed under Order 41 Rule 23-A CPC is amenable to appeal under Order 43 Rule 1(u) of the CPC. The relevant observations read as under:--
"The High Court relied upon a decision of this Court in the case Narayanan Vs. Kumaran and Others, in holding that Civil Miscellaneous Appeal from the order of remand was not maintainable. The High Court was clearly in error. What has been held by this Court in Narayanan is that an appeal under Order 43 Rule 1 Clause (u) should be heard only on the ground enumerated in Section 100 of the Code. In other words, the constraints of Section 100 continue to be attached to an appeal under Order 43 Rule 1(u). The appeal under Order 43 Rule 1(u) can only be heard on the grounds a second appeal is heard under Section 100. There is a difference between maintainability of an appeal and the scope of hearing of an appeal. The High Court failed to keep in view this distinction and wrongly applied the case of Narayanan in holding that miscellaneous appeal preferred by the appellant was not maintainable."
The Apex Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, has held that where there is an alternative remedy of appeal, the High Court will not exercise its jurisdiction under Article 227 of the Constitution of India. Relevant observations read as under:--
"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court''s jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court."
In such circumstances, the present petition wherein challenge has also been laid to the order of the Lower Appellate Court dated 14.6.2011 is not maintainable.
The second issue that arises for consideration whether the order dated 19.8.2011 passed by the trial Court rejecting the objections for exhibiting documents Ex. P1/A to Ex. P131/A is sustainable or not?
A perusal of the facts discussed above and the evidence which has been taken into consideration would go on to show that the original bahis were produced on the date of filing of the suit and on the day of giving evidence and the counsel for the petitioner/defendant had also cross examined the witnesses after scrutinising the original account books. The signatures had been admitted by the defendant on all the entries and the true translated copies had been produced instead of certified copies of the originals which were subsequently tendered on 27.7.2004. The submission that they were being tendered for the first time in rebuttal evidence thus is without any basis and thus the judgment of the Division Bench of this Court in Surjit Singh''s case (supra) would not be applicable to the facts of the present case. Similarly judgment in Tejinder Kaur Vs. Kishan Singh and Others is also to the same effect wherein evidence which had to be led in affirmative by the plaintiff was sought to be led for the first time in rebuttal which was held to be impermissible. In the present case as notice above, a factual finding has been recorded by the trial Court that the original had already been produced at the time of leading of evidence and the cross examination and true translated copies had been exhibited as Ex. P1 to Ex. P131 and the photo copies of the Bahi Khatas had not been placed on record which was now sought to be done by placing the same on record Ex. P1/A to Ex. P131/A. In such circumstances no fault can be found with the well reasoned order dated 10.9.2011 passed by the Lower Appellate Court and accordingly, the present revision petition is dismissed. However, nothing said herein shall prejudice the trial Court from deciding the issue on merits regarding the liability of the petitioner-defendant since defence has already been raised that certain amount were received by Gurjant Singh father of the petitioner. The trial Court shall decide the issue on merits on the basis of evidence led by the parties in accordance with law.