Dismissed

Renukaben Devidas Patel Wd/O Devidas Ratilal Patel v. Tushar Devidas Patel

Gujarat HC8 May 2019SCA/4714/2019

Case brief

AI extract

What is this about?

Petition under Articles 226 and 227 challenging a City Civil Court order refusing to recall an attesting witness of a Will so that he could identify his signature on the original Will. The High Court held that the power under Order 18 Rule 17 CPC cannot be used to fill a lacuna or omission, and declined supervisory interference, dismissing the petition.

What the court decided

AI extract

Renukaben Devidas Patel Wd/O Devidas Ratilal… — Succession and Inheritance | Gujarat HC (2019)

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C/SCA/4714/2019 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 4714 of 2019

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.J. SHASTRI Sd/-

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=== 1	================================================== Whether Reporters of Local Papers may be allowed to see the judgment ?	======= NO
2	To be referred to the Reporter or not ?	NO
3	Whether their Lordships wish to see the fair copy of the judgment ?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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============================================================

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RENUKABEN DEVIDAS PATEL WD/O DEVIDAS RATILAL PATEL & 1 other(s)

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Versus

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TUSHAR DEVIDAS PATEL & 2 other(s)

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============================================================

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Appearance:

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MR JA ADESHRA(107) for the Petitioner(s) No. 1,2 MR PARTHIV A BHATT(5331) for the Respondent(s) No. 1 NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2,3

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============================================================

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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI Date : 08/05/2019 ORAL JUDGMENT

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1.The present petition is filed under
Articles 226 and 227 of the Constitution
of India for the purpose of quashing and
setting aside the order below Exh.98 dated
8.2.2019 passed by the learned Court No.11

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of City Civil Court, Ahmedabad in Civil
Suit No.755/2009.

¶20

2.The premise on which the present petition
is brought by the original defendants No.1
and 4 is that respondent No.1, who is the
original plaintiff of civil suit filed
against his widow mother and 3 sisters in
the City Civil Court, Ahmedabad claiming
right in Bungalow No.6-A, Kumkum Society,
Near Sardar Patel Colony, Stadium Road,
Ahmedabad originally owned by Devidas
Ratilal Patel, by making an assertion that
this property in question is a property of
Devidas Ratilal Patel who executed a Will
dated 23.12.2002 wherein he bequeathed his
aforesaid property to his 3 sisters viz.,
Patel Kinnari Deepakbhai, Patel Paulomi
Hemant and Dipaben Devidas in equal share.
The said Devidas Ratilal Patel died on
29.6.2008 and as per the his Will, the
aforementioned 3 daughters became joint
owners of Bungalow No.6-A, Kumkum Society
i.e., the suit property.

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3. The respondent Nos.2 and 3 are the joint owners of the said bungalow, however, they have been joined, as respondent Nos.2 and 3, as they are presently residing in USA

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and it was not possible to obtain their
signature on Vakalatnama or to secure
Power of Attorney. It is the case of the
petitioner that at the stage of recording
of evidence in the aforesaid suit,
ManeklalTrivediandhisWife

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Sharmishtaben are the witnesses in the
Will dated 23.12.2002 executed by deceased
Devidas Ratilal Patel. Mr.Bipinchandra
Maneklal Trivedi, one of the witness had
submitted his affidavit of examination in
chief on 6.7.2017 at Exh.97. The original
Will was produced on record of the
proceedings, however, during the course of
recording evidence, witness Bipinchandra
Maneklal Trivedi was not shown original
Will, and as such, the signature could not
be identified. It is further case of the
petitioner that though said Bipinchandra
Maneklal Trivedi had specifically stated
in his deposition that if original Will is
shown to him, he would be able to identify
his signature. The cross examination was
also completed on 22.8.2017, but the
original Will was not shown. The
petitioner has invoked extra ordinary
jurisdiction by asserting that it is not
necessary to show the original will to
Bipinchandra Maneklal Trivedi. As a result

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of this, an application was submitted at
Exh.98 for recalling the said Bipinchandra
Maneklal Trivedi and only for the purpose
of identifying his signature and the
signature of his Wife, a request for
recalling was made. However, according to
the petitioner, though the same was not to
fill-up lacuna, the learned Judge
misconstrued the relevant provisions of
the Code of Civil Procedure and rejected
the request for recalling of witness by
passing an order on 8.2.2019, which is
made subject matter of the present
petition.

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4.The Court issued notice originally on
6.3.2019 and pursuant to which, hearing
took place in which Mr.J.A. Adesara,
learned advocate has represented the
petitioner and whereas, Shri B.B. Naik,
learned Sr. Counsel appearing with Mr.P.A.
Bhatt, learned advocate has represented
the concerned respondent/s.

¶30

5.Mr.J.A.Adesara,learnedadvocate
appearing for the petitioner has
vehemently contended that the learned
Judge has misconstrued the provisions
contained under Order 18 and has adopted a

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too technical approach. It has been
submitted that the cross examination was
concluded, but in view of the fact that it
was specifically mentioned by that witness
only that if original Will is shown, he
could identify the signature and as such
for that very purpose alone, the original
document ought to have been permitted.
This approach, which has been adopted by
the Court below is too technical in
nature, and the said order in question is
nothing but a serious error in exercise of
discretion. Accordingly, the order in
question requires to be corrected. He has
further contended that in the entire suit
proceedings, controversy has encircled
towards the Will which has been executed
and if this application is not granted,
serious prejudice will cause to the
defence. As a result of this, learned
Judge ought to have consider the request.
He has further contended that the reasons
which are assigned by the Court below are
also not germane to a valid exercise of
discretion. On the contrary, by a laconic
order, the right is sought to be created
of otherside. As a result of this, instead
of adopting a technical approach, the
learned Judge ought to have considered the

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request. It has been further submitted
that there is no much delay in preferring
anapplication,sincethecross
examination was concluded on 22.8.2017 and
immediately within a period of 1 month
only, without any undue delay, application
was given. Hence, the order in question is
not based upon a sound exercise of
discretion. He has further submitted that
it is settled position of law that when a
substantial justice is pitted against the
technicalconsideration,substantial
justice must be given predominance. Hence,
the impugned order deserves to be
corrected. It has been further submitted
that it cannot be said in any manner that
for the purpose of filling up lacuna, an
application is given. On the contrary, it
would more amplify deposition of a witness
who happened to be one of the attesting
signatories to the Will. It has been
further submitted that this recalling of
witness is not for the purpose of
production of any new evidence, since
undisputedly, the original copy of Will
was very much part of the record. Hence,
no new evidence was to be created as well.
Hence, the reasons assigned by the learned
Judge are not justifiable in the eye of

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law. It has been further submitted that
there is no lack of bona-fides. On the
contrary, the Will in question is a part
of the record and was not sought to be
produced afresh. Merely, because at a
relevant point of time, the advocate
representing may have forgotten to put
relevant question pertaining to Will, but
the same may not be allowed to permanently
damage the defence of the petitioner. As a
result of this, instead of adopting any
technicality, the Court ought to have
adopted a pragmatic view.

¶40

6.For the purpose of substantiating his
submissions, learned advocate Mr.Adesara
appearing for the petitioner has relied
upon two decisions viz., one by the Apex
Court and another by the High Court of
Gujarat, reported in 2009(4) SCC 410 and
decision dated 4.12.2012 in Special Civil
Application No.7036/2012 respectively. By
referring to the relevant paragraphs of
the said decisions, a contention is raised
that in a situation like this, the learned
trial Judge ought to have considered the
request and if this be allowed, there is
no serious prejudice likely to be created

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against the original plaintiff. Hence, the
procedural requirements ought not to have
been given a way to prejudice the defence.
No other submissions have been made.

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7.To meet with the stand taken by learned
advocate for the petitioner, Mr.B.B. Naik,
learned Sr. Counsel appearing with Mr.P.A.
Bhatt, learned advocate for the respondent
has contended that while exercising
discretion, the learned Judge has
perfectly maintained peripheral discretion
which is to be exercised, keeping in view
the provisions of Order 18 Rule 17 of the
Code of Civil Procedure and appropriate
reasons have been assigned, while passing
the order. Hence, the same may not be
treated as perverse in any manner. The
learned Judge has considered at length the
submissions and found that no case is made
out and this attempt on the part of
petitioner is to fill up lacuna or
omission which took place during the
course of leading evidence. He has further
submitted that this power cannot be
exercised in a routine manner and allowing
party to fill up the lacuna, or to seek
any further direction or addition to the
evidence which would defeat purpose of

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provision, if this request is considered.
As a result of this, learned trial Judge
has rightly discarded the request of the
petitioner. He has further submitted that
this burden of producing the relevant
document is on the person who deposes and
if there is any negligence in proving the
document, then, this provision under Order
18 is not meant for sheltering the
negligence or inaccuracy and that has
rightly not been done by the Court below.
He has further contended that the said
provision is, on the contrary, meant for
the Court and not to the petitioner as a
matter of right. This issue has been
empathetically analyzed by the decisions
of the Apex Court which are reported in
2016(11) SCC 296, 2016(14) SCC 142 and a
decision dated 20.8.2018 delivered by
Delhi High Court in MEP.AA.(FC) 138/2017
and by referring to these decisions, he
has submitted that even omission is also
not to be encouraged in a routine manner.
Here is a case in which though there is
specific assertion in examination-in-chief
to which the lawyer concerned was aware,
the original Will was not shown and after
a period of 1 month, the mistake made has

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been realized and this application is
given to fill up the lacuna. Hence, this
attempt may not be encouraged as has not
been allowed by several decisions of the
Apex Court. Hence, the petition being
merit-less, does not deserve to be
entertained.

¶51

8.He has further contended that the learned
trial Judge is invested with the
discretion to pass an order and the manner
in which the order is passed, it appears
that the same is well within the
discretion vested in him. Hence, there
seem to be no material irregularity, nor
perversity which would permit the
petitioner to invoke extra ordinary
jurisdiction. Looking to the scope of
Articles 226 and 227 of the Constitution
of India also, such a request has rightly
not been accepted by the Court below.
Hence, petition be dismissed.

¶52

9.Having heard learned advocates for the
respective parties and having gone through
material produced on record, it appears
that the suit is of the year 2009 which
was filed for the purpose of seeking
declaration and permanent injunction way

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back in April, 2009 in which evidence has
commenced and during the course of
evidence in the year 2017, witnesses been
examined by the respondents. It has been
further found that in an examination-in-
chief which has been submitted at Exh.97
it has been clearly in terms, suggested on
6.7.2017 in paragraph 4, that if original
Will is shown, the same would be possible
for him to identify the signature. It has
also been found that the reason which has
been assigned for seeking such kind of
production and in turn recalling of the
witnesses is only with a view to see that
no prejudice is caused. But, in fact, the
chief-examinationwastenderedon
6.7.2017. The cross- examination has taken
place on 22.8.2017, in which also, no
attempt is made to prove the Will in
question. It is also found that this
application is submitted after almost a
period of one month and the manner in
which the application is submitted, it
transpires that the realization or mistake
might have taken place to prove the Will.
Hence, apparently, it appears that at the
relevant point of time, during the course
of one of the witnesses, a lapse has
occurred of not showing the Will to the

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witness.

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10.However, it appears that application for
recalling of witness is given to take
sufficient evidence and as such this
application is aimed at an inclination to
complete the left out circumstances which
did not occur at the time, even though it
was reflecting in affidavit and in
examination-in-chief.Thisrequest
certainly can be said to be an attempt to
fill up the lacuna or to fill up the gap
on account of omission.

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11. Now, in the context of aforesaid circumstances which are prevailing on record, the Court has specifically noticed that chief examination has been completed in the month of July, 2017, cross examination had also been completed in August, 2017 whereas the application is submitted in the month of September, 2017.

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12. Additionally, it also appears that this lacuna cropped up in the case of one of the witnesses Bipinchandra Maneklal Trivedi and not the other signatories to the execution of Will.

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13.In the wake of aforesaid situation which
is prevailing on record, if the Court
analyzes the decisions which have been
cited by the respective sides, the same
would be of much assistance to arrive at a
decision. In this context, the first
decision which has been cited by learned
advocate Mr.J.A. Adesara appearing for and
on behalf of the petitioner is a decision,
delivered by the Apex Court, reported in
2009(4) SCC 410. The Hon'ble Supreme
Court, after analyzing the provisions of
Order 18 Rule 17 of the Code of Civil
Procedure has pointed out that there is
ample power in which the Court can recall
not only on its own, but also on an
application made by the defendants and by
examining the facts which were prevailing
on hand. The Apex Court has propounded
that if the re-examination of witness is
bearing the ultimate decision, it is
always open for the trial Court to permit
such recalling of witness. Yet another
decision which has been relied upon is
reported in 2012 Law Suit (Guj) 1365 in
which also, similar view has been
reiterated that is prerogative of the
Court to recall any witness who has been
examined earlier and put him to question

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as may be deemed fit. The only barrier is
that it is not permissible for a party to
fill up the lacuna.

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14.Now, as against this, a recent trend which
has been reflecting from the decisions
reported, it transpires that such power of
recalling witness shall not be exercised
in a routine manner. First judgment which
has been pointed out is a decision
reported in 2016(11) SCC 296, in which,
while dealing with provisions contained
under Order 18 - Rule 17 r/w Sec.151 of
the Code, the Apex Court has clearly
propounded that the provisions cannot be
resorted to, for the purpose of filling up
lacuna or omission. The Court has gone to
the extent that no prejudice is caused to
either party is also not a relevant
consideration for invoking Rule 17 of the
Code. The relevant extract contained in
this decision reads as under: -

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“11. The respondent filed the application under Rule 17 read with Section 151 of the CPC invoking the inherent powers of the court to make orders for the ends of justice or to prevent abuse of the process of the court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in

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that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. ‘No prejudice is caused to either party’ is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground.

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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:

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“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 cross-examination. 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

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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 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.”

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18. The settled legal position under Order 18 Rule 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.”

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15. A further decision which has been cited is reported in 2016(14) SCC 142, in which also, the Apex Court while dealing with this particular provision of Order 18 Rule 17 of the Code of Civil Procedure has clearly pointed out, while dismissing the Special Leave Petition with cost and has not permitted such reexamination. The relevant observations contained in such decision in paragraph Nos.7 and 8 reads as under: -

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“7. In K.K. Velusamy (supra), while dealing with the power of the Court under Order XVIII Rule 17, this Court held that:-

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9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410]

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Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in- chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

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And again:-

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19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite

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trials. But where the application is found to bebona fideand where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.

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x x x x x

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21. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. Courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, re-opening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency.

¶92

We have referred to the said paragraphs to show the purpose of filing an application under Order XVIII Rule 17 of the Code. We may add that though in the said decision this Court allowed the appeals in part, the fact situation, the conduct of the party and the grievance agitated were different. The Court also thought it apposite to add a word of caution and also laid down that if the application is mischievous or frivolous, it is desirable to reject the application with costs.

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8. In this context, we may fruitfully refer to Bagai Construction Through its proprietor Lalit Bagai v. Gupta Building Material Store,(2013) 14 SCC 1. In the said case the Court had expressed its concern about the order passed by the High Court whereby it had allowed the application preferred under Order XVIII Rule 17 that was rejected by the trial court on the ground that there was no acceptable reason to entertain the prayer. Be it stated, this Court set aside the order passed by the High Court. In the said case, it has also been held that it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. That apart, it has also been held that the Courts should constantly endeavour to follow such a time schedule so that the purpose of amendments brought in the Code of Civil Procedure are not defeated. Painfully, the Court observed:-

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15....In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such

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course is not permissible even with the aid of Section 151 CPC.”

¶100

16.Yet another decision, which is of
assistance to the Court is a decision
which is delivered by Delhi High Court
recently on 20.8.2018 (Supra), in which
after considering the earlier decisions of
Hon'ble Apex Court and other decisions,
the Delhi High Court has also taken a view
that this provision is not meant to be
exercised in a routine manner. After
relying upon two decisions of the Apex
Court; as propounded, that this provision
is primarily made to enable the Court to
clarify any issue or doubt by recalling
the witness so that Court itself can put a
question and elicit the answer. The
relevant paragraph Nos.11 to 13 are
reproduced hereinafter: -

¶101

11. At the outset, we deem it proper to
discuss the law on Order 18 Rule 17 of CPC.
The Hon’ble Supreme Court in the case of
Vadiraj Naggappa Vernekar v. Sharadchandra
Prabhakar Gogate, reported at (2009) 4 SCC
410 more particularly para 28 held as under:

¶102

“28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.” (Emphasis Supplied)

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12. Further, in the case of K.K. Velusamy v. N. Palanisamy reported at (2011) 11 SCC 275 discussed the power of the Court under Order 18 Rule 17 of CPC. It was held that this power is only for clarification i.e. to enable Court to clarify any issue or doubt, it may have in regard to evidence led by parties by recalling any witness so that the Court itself can put questions to such witness and elicit answers. The relevant paras 9, 10 and 19 read as under:

¶106

“9. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

¶107

10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions. xxx xxx

¶108

19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of

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the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.” (Emphasis Supplied)

¶112

13. In the case on hand, the counsel for the appellant has fairly submitted that when the said application came for hearing, it was dismissed as withdrawn by the counsel for the appellant for the reasons best known to him. Once the application was dismissed as withdrawn, the appellant cannot complain that the Family Court did not allow the witness to be re-examined. Moreover, applying the law laid down to the facts of the present case that Order 18 Rule 17 of CPC is to be sparingly exercised and it is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination. However, the provision is primarily to enable the Court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the Court itself can put questions and elicit answers. In this background, we are of the view that the power under Order 18 Rule 17 is not

¶113

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¶114

C/SCA/4714/2019 JUDGMENT

¶115

intended to be used in routine manner.

¶116

17.From the aforesaid proposition, what has
been emerged is that this power under
Order 18 Rule 17 of the Code of Civil
Procedure cannot be exercised for the
purpose of either filling up omission or
for the purpose of filling up lacuna or
for the purpose of amplifying a deposition
or to clarify. Here, in the case on hands,
there is a specific assertion made by the
witness that if his signature is shown in
original Will, he could identify the same.
Even though there is a reference in
examination-in-chief and in the cross-
examination which has been taken even at
that juncture also, no such attempt is
made which is now tried to be made and
after almost a period of one month,
possibly having realized the serious
mistake, this kind of application is
submitted which certainly tantamounts to
be an attempt to fill up lacuna or to
clear the omission which took place by the
present petitioner.

¶117

18.Hence, in view of above set of
circumstances and in view of the aforesaid
proposition of law which has been laid

¶118

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¶119

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¶120

down by the Apex Court in recent times,
this Court is not in a position to
substantiate the finding which has been
laid in due discharge of its exercise of
jurisdiction.

¶121

19.Additionally, the Court has assistance to
one of the decisions of the Hon'ble Apex
Court on the issue of exercise of extra
ordinary jurisdiction and for that
purpose, the Court is inclined to avail
such assistance. This petition is filed
under Articles 226 and 227 of the
Constitution, but exercise of supervisory
jurisdiction is enabled by Article 227 of
the Constitution and what are the
parameters for exercise of such power are
stipulated by the decision which has been
reported in AIR 1984 SC 38. The relevant
paragraph No.7 is reproduced hereinafter:-

¶122

"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunals functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error or law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunals purports to be

¶123

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¶124

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¶125

based or to correct errors of law in the decision."

¶126

20.This principle has been more carefully
reiterated and re-enforced by the Apex
Court in a further decision reported in
2013(9) SCC 374, and looking to the
observations contained in paragraphs No.6
and 7 of the said decision, this Court is
not inclined to exercise extra ordinary
jurisdiction in such a peculiar set of
circumstances. It appears that the
petitioner is also not made remedy less,
yet another witness is very much
available. Hence, no error appears to have
been committed of any nature. Even, there
seem to be no material error in exercising
discretion nor any perversity is
reflecting which would permit this Court
to exercise extra ordinary jurisdiction.
Accordingly, petition being merit less,
the same deserves to be dismissed and is
hereby dismissed with no order as to
costs.

¶127

Sd/(A.J. SHASTRI, J)

¶128

*** VATSAL

¶129

Page 25 of 25

Renukaben Devidas Patel Wd/O Devidas Ratilal Patel v. Tushar Devidas Patel

Case brief

What is this about?

What the court decided

Renukaben Devidas Patel Wd/O Devidas Ratilal Patel v. Tushar Devidas Patel

Case brief

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What the court decided

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