Misc. Civil Appln. (Review) No.1004 of 2008,Writ Petition No.2744 of 2008

30th September, 2008

Petitioner Counsel: Shri. M. M. AGNIHOTRI
Respondent Counsel: Shri. MUJUMDAR

Cases Cited:
Arjun Singh Vs. Mohindra Kumar, 2008 ALL SCR (O.C.C.) 65 : AIR 1964 SC 993 [Para 3,7,11]
Suresh Kumar Vs. Baldev Raj, AIR 1984 DELHI 439 [Para 3,9,10]
Mafatlal Engineering Industries Ltd. Vs. Mafatlal Engineering Industries Employees' Union, 1991 Mh.L.J. 1359 [Para 3]
W.P. No.4844/2006, Dt.:-17.10.2006 [Para 3,10]
Baburao s/o. Sahebrao Deshmukh Vs. Maharashtra Insecticides Limited, Akola, 2004(2) Mh.L.J. 717 [Para 3,9,10]
Laxman Marotirao Paunikar Vs. Keshaorao Rambhau Paunikar, 2001(1) ALL MR 157=2000(4) Mh.L.J. 482 [Para 3,9,10]
Bhanu Kumar Jain Vs. Archana Kumar, 2005(5) ALL MR 257 (S.C.)=2005(2) Mh.L.J. 839 [Para 4]
Wasudeorao Babasaheb Sonone Vs. Jagannath Ramlalji Jugele, 1985 Mh.L.J. 565 [Para 7,9]

JUDGMENT

JUDGMENT :- 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 Vs. Mohindra Kumar and others, reported in AIR 1964 Supreme Court 993 : [2008 ALL SCR (O.C.C.) 65] 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 Vs. Baldev Raj).

(ii) 1991 Mh.L.J. 1359 (Mafatlal Engineering Industries Ltd. Vs. 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 Vs. Maharashtra Insecticides Limited, Akola and others).

(v) 2000(4) Mh.L.J. 482 : [2001(1) ALL MR 157] (Laxman Marotirao Paunikar Vs. 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 Vs. Archana Kumar and another, reported in 2005(2) Mh.L.J. 839 : [2005(5) ALL MR 257 (S.C.)]. 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 Vs. Mohindra Kumar and others [2008 ALL SCR (O.C.C.) 65] (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 Vs. 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 9, 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 20, 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 9, Rule 7 has passed the next stage is only the stage of passing a decree which under Order 9, 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 [2001(1) ALL MR 157] (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 Vs. 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 [2001(1) ALL MR 157] (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 Vs. Mohindra Kumar and others [2008 ALL SCR (O.C.C.) 65] (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.

There is a prayer for stay of this judgment for a period of three weeks.

In view of the clear cut legal position discussed in the judgment, prayer for stay of judgment is rejected.

Application dismissed.