1994 ALLMR ONLINE 482
BOMBAY HIGH COURT

M.B. GHODESWAR AND R.M. LODHA, JJ.

State of Maharashtra, through Collector, Bhandara Vs. Maimuna Begam w/o Abdul Sattar Quereshi and others

First Appeal No. 475 of 1990

17th June, 1994

Petitioner Counsel: Shri S. G. Deshpande, 'A' Panel Counsel,
Respondent Counsel: Shri J. N. Chandurkar and Shri Anand Parchure, No. 1.

Civil P.C. (1908),O. 18 R2(4)

Cases Cited:
AIR 1969 PunjHar 197 [Para 13]
AIR 1955 SC 425 : 1955 SCA 545 [Para 12]
(1884) 26 CD 700, Cropper v. Smith [Para 15]
(1879) 4 Appeal Cases 504, Henry J. B. Kendall v. Peter Hamilton [Para 11]


JUDGMENT

LODHA, J. :-This appeal has been filed by the State of Maharashtra through the Collector, Bhandara under S. 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 5th of May, 1990 passed by the Civil Judge, Senior Division, Bhandara in Special Civil Suit No. 82 of 1985 (Maimunabegum v. State of Maharashtra) whereby he passed the decree in favour of plaintiff and directed the defendants to return to the plaintiff the golden ornaments weighing 28 1/2 tolas or the gold of equal weight or in the alternative to pay the present value of the gold weighing 28 1/2 tolas and also directed the defendants to return cash of Rs. 80,000/- to the plaintiff along with costs of the suit.

The plaintiff-Maimunabegum filed suit as indigent person on 19-3-1980 in the Court of the Civil Judge, Senior Division, Bhandara against the defendants stating therein that on 19-1-1977 the defendants 4, 5 and 6 came to the house of plaintiff and searched the same; the said persons forcibly took the keys of the

boxes and almirah from her saying that they are having warrant against her husband and he will be detained in MISA or in any criminal case under S. 406 of the Indian Penal Code; on search of the house, the Police and the said defendants found cash of Rs. 80,000/- in one box along with the ornaments viz. to Patlis of 10 tolas, one Gahu Poth of 4 tolas of gold, five golden chains of 4 tolas each and four rings of 1/2 tola each, totally amounting to Rupees 78,600/- the ornaments and cash which were seized were in actual physical possession of the plaintiff and the same seizure and search was illegal and without any rights. According to the plaintiff, the property was not liable to be seized and despite several demands, the authorities-defendants have failed to return the same. The plaintiff alleged that the property was taken away by the defendants 4 to 6 without giving any acknowledgment. The plaintiff submitted in the plaint that she has issued a notice under S. 80 of the Code of Civil Procedure on 18-1-1980 to the defendants and despite receipt of the notice, no redress has been given t0 the plaintiff, necessitating the filing of suit. The suit was valued at Rupees 1,58,600/- for the purposes of Court-fees and jurisdiction. The plaintiff thus prayed that she be allowed to sue as indigent person and the defendants be directed to return cash of Rs. 80,000/- and the ornaments of 46 tolas of gold to the plaintiff or the price of the said ornaments which is Rs. 78,600/- and the decree for interest from the date of seizure till realisation at 18% per annum and the costs be awarded.

2. The defendants filed written statement and traversed the averments made in the plaint. The defendants submitted in the written statement that the defendant No. 6, Shri Vyawahare, Police Sub-Inspector, P.C.I. Centre, Rohankarwari, Chindwara Road, Nagpur had carried a search warrant issued by the defendant No. 3 Shri V. R. Bangirwar, Sub-Divisional Magistrate, Bhandara for Government record and the record of All India Jamayata Ul Mansoori; the said warrant was issued under the provisions of the Criminal Procedure Code, 1973 for search of the house of Shri A. S. Qureshi at Tumsar (plaintiff's husband) and pursuant to that warrant the house was searched by the defendant No. 6, Police Inspector in presence of defendants 4 and 5 who were directed to be present as witnesses at the time of search; the defendant No. 3 Shri V. R. Bangirwar who was working as Sub-Divisional Magistrate-at Bhandara District was competent to issue the search warrant for recovery of relevant record of the Government Office and the responsible officers i.e. the defendant No. 4 Shri N. V. Pant, Nazul Officer and the defendant No. 5 Shri D. M. Landage, Naib Tahsildar were asked to carry the search of the house of the plaintiff's husband; the warrant was shown to the plaintiff and thereafter the search was conducted legally and in peaceful manner and, therefore, the question of forcibly taking the keys of big box and almirah of the plaintiff saying that there was warrant against her husband for detention in MISA and in criminal case, did not arise. The defendants submitted that there was no warrant of arrest of plaintiff's husband and the search warrant was issued by the Sub-Divisional Magistrate, Bhandara for search of the Government record and the record of All India Jamayate Ul-Mansoore. The defendants denied having taken cash or gold by way of seizure and submitted that the said allegations are totally false. It was also submitted by the defendants in the written statement that except the records no cash or gold ornaments referred to in paragraph 3 of the plaint, were recovered or seized, as alleged by the plaintiff and, therefore, no cause of action has accrued in favour of the plaintiff and the suit was liable to be dismissed.

3. The trial Court framed the following issues for determination in the suit :-

(1) Does plaintiff prove that defendants 4, 5 and 6 on 19-1-1977 said that there was search warrant against her husband and he will be detained in MISA and forcibly took key of big box and almirah belonging to her ?

(2) Whether she proves that during search they seized cash Rs. 80,000/- and golden ornaments valued Rs. 78,600/- described in paras ?

(3) Does she prove that the cash and

ornaments are not returned to her inspite of several applications and representations ?

(4) Does she prove that defendants jointly and severally liable to return the cash and ornaments. or their value ?

(5) Is she entitled to get back ornaments and cash or their value ?

(6) What order and cost ?

4. It will not be out of place to mention here that in the written statement the defendants also submitted that the Departmental Enquiry was held against the husband of plaintiff for indulging in illegal activities and for misappropriation of the Government records which were seized from 1977 by the defendant No. 6 in presence of defendants 4 and 5 and two panchas viz. Haribhau Tulshiram Navkhere and Vijendra Pyarelal Mahwa and in that Departmental Enquiry the question of seizure of golden ornaments and cash amount and documents dated 19-1-1977 filed by the plaintiff on 7-7-1989 in the Court was not raised and produced. According to the defendants, the document viz. the seizure memo dated 19-1-1977, the certified copy of which was dated 7-7-1989 was false, forged and a fraudulently manufactured document. According to the defendants, they wanted the trial Court to frame specific issue as to whether the defendants proved the document viz. certified copy of the seizure memo dated 19-7-1977 filed by the plaintiff on 7-7-1989 as false, forged and fraudulently manufactured document and if so, whether the plaintiff is entitled to suit claim on the basis of the same.

5. That, the plaintiff produced documentary as well as oral evidence and closed evidence on 21-3-1990 and the case was fixed for evidence of the defendants and since the defendants failed to lead evidence on the dates fixed, the trial Court closed the evidence of defendants and vide judgment dated 5-5-1990 decreed the plaintiff's suit, as aforesaid.

6. We have heard the learned counsel for the parties at length, but since the appeal can be disposed of on the first and foremost ground urged by the learned counsel for the appellant, there is no necessity of examining the other grounds urged by the learned counsel for the parties.

7. The learned counsel for the appellant has submitted before us that the appellant/defendants were not afforded sufficient opportunity to lead evidence in respect of their case and their evidence was closed in hot haste by the learned trial Court and thus, serious prejudice has been caused to them and the judgment and decree passed by the learned trial Court is liable to be set aside on that count alone. On the other hand, Mr. Chandurkar, the learned counsel for the plaintiff/respondent No. 1 with all vehemence at his command, submitted before us that the defendants have been negligent in conduct of their case and despite several opportunities given to them, they failed to produce their evidence and, therefore, the learned trial Court did not commit any error in closing the evidence of the defendants and, therefore, there was no force in the submission made by the counsel for the appellant.

8. To appreciate the rival contentions of the parties, it would be appropriate to examine proceedings of the trial Court. It is found from the record of the case that on 21-3-1990, the plaintiff examined Shri Abdul Sattar as P.W. 4 and closed her evidence and the case was fixed for evidence of the defendants on 4-4-1990. On 4-4-1990 the Presiding Officer of the Court was on leave and, therefore, the case was adjourned to 11-4-1990. Again on 11-4-1990 the Presiding Officer of the trial Court was on leave and, therefore, the case was fixed for defendants' evidence on 21-4-1990. On that date, witnesses of the defendants were present, but the counsel for the defendants had his personal work and, therefore, he moved an application seeking adjournment and on that application, the case was fixed for 2-5-1990. At the time when the case was called on 2-5-1990 the witnesses of the defendants were not available and hence an application was filed by the counsel for the defendants that it is not possible to adduce evidence and time may be granted. However, the learned trial Court rejected the said application by observing that since the

defendants were given last chance on. the previous date, no adjournment can be granted. However, it appears from the record that on 2-5-1990 itself, the defendants moved an application for setting aside the order and permission to adduce evidence by submitting that the witnesses of the defendants are present at 4.00 p.m. and ready for adducing the evidence and as such, their evidence be recorded. The plaintiff was permitted to have a say on the said application who opposed the prayer of the defendants for adducing the evidence and the learned trial Court rejected the said application on 4-5-1990 and heard the parties. As stated above, on 5-5-1990 the learned trial Court decreed the plaintiff's suit.

9. The narration of the proceedings stated above would show that the trial Court did not exercise its discretion correctly and in accordance with the settled principles of procedure. It is apparent from the order-sheets referred to hereinabove that the conduct of the defendants was neither grossly negligent nor contumacious warranting closer of their evidence since on two dates fixed for recording the evidence, the Presiding Officer of the Court was not present, on 3rd date the witnesses of the defendants were present, but the counsel for the defendants was busy in his personal work and was unable to examine the witnesses and on 4th date i.e. on 2-5-1990, though initially the witnesses of the defendants were not present, but by 4.00 p. m. the witnesses of the defendants had come and they had attended the Court for examining themselves. The trial Courts should not normally shut and close the evidence of parties unless the conduct of the parties is contumacious, grossly negligent and there are serious inactions or laches on their part. The trial Courts should exercise their discretion in such a manner which advances the cause of justice and curb the avoidable litigation in the form of appeals and revisions. The trial Courts should only adopt the course of closure of the evidence of the party when it finds that the defaulting party is intending to stultify the process of the Court and not permitting the Court to proceed in the matter.

10. Order XVIII, Rule 2(4) of the Code of Civil Procedure reads as under :-

"Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage."

The legislative intention is clear that if a witness appears before the Court or any party produces the witness before the Court even after the closure of evidence, if it is prior to the delivery of judgment, the Court may, for reasons to be recorded, record the evidence of that witness. If discretion is exercised in this manner by the trial Court in the spirit of O. XVIII, Rule 2(4) of the C.P.C., it would definitely advance the cause of justice since it would avoid litigation in the form of appeals and revisions and setting aside of such orders in appeals and revisions.

11. In Henry J. B. Kendall v. Petter Hamilton, 4 Appeal Cases 504, Lord Penzance laid down the following principle :-

"Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. It strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve."

12. In Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425. Their Lordships of the Apex Court said (at page 429) :-

"A Code of Procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip prople up. Too technical a construction of Sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their

lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

13. In Balwant Singh Bhagwan Singh v. Firm Raj Singh Baldev Kishen, AIR 1969 P and H 197 Hon'ble Justice Shri R. S. Sarkaria, J. (as he then was) held (at page 199) :-

"Promptitude and despatch in dispensation of justice is a desirable thing but not at the cost of justice. All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. It is immaterial if the original omission to give evidence or to deposit process fee arises from negligence or carelessness. However, negligent or careless may have been the first omission to give evidence or to deposit process-fee, it should be allowed if that can be done without injustice to the other side. There is no injustice if the other side can be compensated by costs."

14. The aforesaid principles which are now well settled and oft quoted, must guide the trial Courts while exercising the discretion relating to examination of witnesses and the recording of evidence. The approach of the trial Courts in proceeding with the lis and conduct of the lis must be designed to facilitate justice and further its ends which is in consonance with the principles of natural justice and affording reasonable opportunity to the parties of lis in leading the evidence. It is not that in no case the trial Courts could close the evidence. The trial Court have to see the conduct of the parties in conduct of the proceedings as to whether their conduct is contumacious, grossly negligent and of gross inactions intended to obstruct progress in the proceedings. After all, procedure is a hand maid and not a mistress of law, intended to subserve the cause of justice and hypertechnicalities, rigidity and too strict a view should not come in the way of imparting justice.

15. It would not be out of place to reiterate the principle laid down by Lord Bowen in Cropper v. Smith (1884) 26 CD 700, 'there is one panacea which heals every sore in litigation, and that is costs.'

The trial Court ought to have recorded the statements of the witnesses on 2-5-1990 when they were present in the Court and for inconvenience caused to the plaintiff, costs could have been imposed.

16. In view of the aforesaid factual and legal position, we hold that the learned trial Court committed serious error in closing the evidence of the defendants on 2-5-1990 and committed further error in not allowing the application filed by the defendants that very day when their witnesses were present in the Court and prayed for recording of their evidence. The learned trial Court exercised its discretion arbitrarily, erroneously and not in accordance with the settled principles, as stated above.

17. Upshot of the aforesaid discussion is that the judgment and decree passed by the learned Civil Judge, Senior Division, Bhandara on 5-5-1990 in Special.Civi1 Suit No. 82 of 1985 (Maimuna Begum v. State of Mah.) is liable to be set aside and the same is consequently set aside. The suit is remanded back to the said Court for giving opportunity to the defendants to lead evidence, after considering whether any additional issue is required to be framed. The plaintiff shall have liberty to lead evidence in rebuttal of the evidence of the defendants, if she so desires. Since the defendants' witnesses were not present on 2-5-1990 at the time when the case was taken up and came later on resulting in avoidable litigation, the defendants would be entitled to lead evidence only on payment of costs of Rs. 500/- to the plaintiff. As the suit is of the year 1980, it is expected of the trial Court to conclude the trial and decide the suit as expeditiously as possible and in any case,

not later than one year from the date of receipt of record and appearance of the parties. The parties are directed to remain present before the trial Court on July 25, 1994. The first appeal is allowed and decided accordingly.

Appeal Allowed