Sagar Dass Vs Piare Lal and Anr.

The present petition has been preferred by the petitioner, laying challenge to impugned order dated 13.07.2021, whereby two applications filed by the present petitioner/plaintiff stand disposed of vide a single common order.

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At the very outset, it would be appropriate to mention that the present petition has been preferred under Article 227 of the Constitution of India.

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This Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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2

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abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. On the other hand in the supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. (See Sadhana Lodh vs. National Insurance Co. Limited and another, (2003) 3 SCC 524 and Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181 ).

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Heard learned counsel for the parties, perused the petition and the impugned order.

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Vide impugned order dated 13.07.2021, one of the application, which has been dismissed by the trial Court is an application filed under Section 151 of the Civil Procedure Code for allowing the applicant to examine certain witnesses, namely Chandu Lal and Vikrant Sharma, Architect.

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From a perusal of the impugned order dated 13.07.2021, it is evident that the sole reason for dismissing the application for production of additional evidence is being that after amendment in the Civil Procedure Code w.e.f. 01.07.2002, Order 18 Rule 17-A does not exist on the statute book. Therefore, according to the trial Court, in the absence of any power in the procedural code qua leading additional evidence, the same cannot be permitted.

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In this regard, it would be appropriate to refer to the law laid down by the Hon’ble Apex Court in K.K. Velusamy vs. N. Palanisamy, 2011(11) SCC 275. The relevant extract, whereof, is being reproduced herein below:-

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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

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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 nonproduction 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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In view of the aforesaid proposition of law, impugned order dated 13.07.2021, insofar as dismissing the application for leading additional evidence is concerned, the same is quashed and set aside. The matter is remanded back to the trial Court for a fresh adjudication on the application filed for leading additional evidence in view of the parameters laid down by the Hon’ble Apex Court in Velusamy’s case supra.

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Insofar as the impugned order (13.07.2021), dismissing the application filed by the present petitioner/plaintiff, seeking appointment of Local Commissioner, is concerned, in view of the parameters stated supra (Paragraph 3), I see no reason to interfere in the same to the extent it decides/dismisses the application filed by the petitioner/plaintiff under Order 26 Rule 9 of the Civil Procedure Code.

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