SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 1/17 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.4951/2008 Kishan Chand versus Pankaj Abbani PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.Om Mehta, for the petitioner. REPORTABLE DATE OF JUDGMENT : 25th July, 2008. JUDGMENT 1. This writ petition under Article 227 of the Constituition of India is directed against the ordr dtd.26.5.2008 passed by the learned trial Court rejecting the appliction of the defendant filed under Order 8 rule 1A(3) of the C.P.C. seeking to produce on record certain additional documents in an eviction SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 2/17 matter. 2. The suit filed by the plaintiff was for seeking eviction of the suit shop in question on the ground of personal and bonafide necessity of the landlord. After the evidence of the plaintiff – defendant was complete on 17.11.2006 and the case was fixed for final arguments on 8.12.2006 after taking several opportunities for arguing the case, the defendant filed the aforesaid application under Order 8 Rule 1(A)(3) of the C.P.C. and the said defendant wanted to produce the documents viz. application for registration under the Sales Tax Law by one M/s Arihant Metals, proprietorship concern of father of the plaintiff, which was purportedly signed as Manager by the plaintiff; the marriage invitation card showing marriage of the plaintiff and his brother on 25.2.2005 and 27.2.2005 respectively and a coy of the registered sale-deed of the suit property in favour of the plaintiff and his brother, certified copy whereof was issued by the Office of Sub-Registrar, Jodhpur on 28.9.2007. 3. The learned counsel for the petitioner – defendant SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 3/17 submits that the said documents were relevant for showing that the plaintiff had no personal and bonafide need of the shop in question and therefore, the same deserve to be taken on record and the learned trial Court has erred in rejecting the application. He submitted that after the amendment of C.P.C. w.e.f.1.7.2002, the rule relating to production of additional documents has been liberalized with simultaneous deletion of Order 13 Rule 2 w.e.f. from the same date which provided for effect of non-production of documents, therefore, the learned trial Court ought to have allowed production of these documents and cross- examination of the plaintiff though the matter was fixed for final arguments. He, therefore, prays for quashing of the impugned order. 4. I have heard the learned counsel at length. 5. After amendment of Section 115 C.P.C. relating to revision by Act No.104 of 1976 w.e.f.1.2.1977 and insertion of proviso w.e.f. 1.7.2002 providing that High Court shall not under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 4/17 proceedings, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. After the said proviso, the revision petitions against the interlocutory orders passed by the learned trial Courts are not maintainable. The said amendment w.e.f. 1.7.2002 has also rendered the revision petition already filed before 1.7.2002 against the interlocutory orders as not maintainable. This was so held by the Hon'ble Supreme Court in the case of Shiv Shakti Coop. Housing Society, Nagpur V/s Swaraj Developers and others reported in (2003) 6 SCC 659. It would be appropriate to reproduce para 32, 34 and 35 of the said judgment: “32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is “yes” then the revision is maintainable. But on the contrary, if the answer is “no” then the revision is not maintainable. Therefore, if the impugned order is SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 5/17 interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject- matter of revision under Section 115. There is marked distinction in the language of Section 97 (3) of the Old Amendment Act and Section 32(2) (i) of the Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory only the right of proceeding is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.” 34. In view of what has been stated above, the inevitable conclusion is that the High Courts were SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 6/17 right in the conclusion about non-maintainability of revision applications. 35. It was submitted by the learned counsel for the appellants that even if the revision applications are held to be not maintainable, there should not be a bar on challenge being made Article 227 of the Constitution. It was submitted that an opportunity may be granted to the appellant to avail the remedy. 36. If any remedy is available to a party under any statute no liberty is necessary to be granted for availing the same. If the appellants avail such remedy, the same shall be dealt with in accordance with law.” 6. In the same sequence, another reported judgment of Hon'ble Supreme Court in the case of Surya Dev Rai V/s Ram Chander Rai and ors. reported in (2003)(6) SCC 675 in the same volume of SCC, follows the judgment in Shiv Shakti's case (supra) and the coordinate bench of the Hon'ble Supreme Court held that even though the revision petition under Section SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 7/17 115 C.P.C. against the interlocutory order was not maintainable, the remedy under Article 226 and 227 of the Constitution of India could still be available because that was a constitutional remedy and that could not be taken away by amendment in the Civil Procedure Code. The Hon'ble Supreme Court held in the said judgment as under: “The power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional jurisdiction of the High Court under Section 115 C.P.C. by Amendment Act 46 of 1999 does not take away – and could not have taken away – the constitutional jurisdictin of the High Court to issue a writ of certiorari to a Civil Court, nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whitted down. The power exists, untrammelled by the amendment in Section 115 CPC, and is available to be exercised subject to rules of self-discipline and practice SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 8/17 which are well settled.” Section 115 CPC, as amended by Act 46 of 1999, does not now permit a revision petition being filed against an order disposing of an appeal against the order of the trial Court whether confirming, reversing or modifying the order of injunctino granted by the trial Court. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the substitution of the proviso to Section 115(1) CPC by said Amendment Act 46 of 1999. The amendment is based on the Malimath Committee's recommendations. The Committee was of the opinion that the expression employed in Section 115 CPC, which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 9/17 irreparable injury to the party against whom it was made, left open wide scope for the exercise of the revisional power with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. The effect of erstwhile clause (b) of the proviso being deleted and a new proviso having been inserted, is that the revisional jurisdiction, in respect of an interlocutory order passed in a trial or other proceedings, is substantially curtailed. The revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. Interlocutory orders, passed by the courts subordinate to the High Court against which remedy of revision has been excluded by the CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 10/17 certiorari and supervisory jurisdiction of the High Court under Articles 226 and 227. Hence, the order of the High court refusing to entertain the petition filed by the appellant holding it not maintainable, is set aside. The petitioner shall stand restored on the file of the High Court, to be dealt with by an appropriate Bench consistently with the rules of the High Court, depending on whether the petitioner before the High Court is seeking a writ of certiorari or invoking the supervisory jurisdiction of the High Court.” 7. In para 26 of the said judgment in Surya Dev Rai's case (supra), the Hon'ble Supreme Court held as under: “Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 11/17 subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as,if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. 8. In para 38, the Hon'ble Apex Court concluded thus: “The High court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 12/17 drawing inferences or correct errors of mere formal or technical character. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a court which has jurisdiction over a subject matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an appellate Court and step into reappreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court.” 9. The very purpose of restricting the scope of revision under Section 115 C.P.C. was to curtail the length of trial and to achieve the object of early disposal of the civil suits which had become notoriously famous for encapsulating generation within them. Every now and then, against interlocutory orders, revision petitions were filed before the High Courts not only lengthening the time of trial before the trial Court but also added to the burden of the High Courts. While it is true that the power of issuing writ or certiorari under Article 226 and of SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 13/17 superintendence under Article 227 of the Constitution of India could not have been curtailed by said amendment of Section 115 C.P.C. as held by the Hon'ble Supreme Court in the case of Ram Chander Rai (supra), the ground reality is that what could not be done by filing revision petition, after amendment w.e.f. 1.7.2002 is now done by invariably and indiscriminately filing writ petitions under Article 226 and 227 of the Constitution of India and the fact is that what was earlier titled as revision petition under Section 115 C.P.C. is now titled as writ petition under Article 226/227 of the Constitution of India against the same interlocutory orders. The fact situation is that burden remains the same and very objective of the amendment in the CPC is frustrated by litigants and lawyers' ingenuity finding a bypass into a remedy under Article 226/227 of the Constitution of India. 10. The writ jurisdiction of course is subject to self-imposed discipline and parameters for exercise of such jurisdiction have been well laid down in number of cases, but once such petitions by relabelling as aforesaid are filed, they necessarily encroach upon the time of the High Courts and there is possibly no check SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 14/17 which can be put on such filing of the writ petitions. More often than not, if against dismissal of writ petitions by Single Judge, Division Bench intra court appeals are also filed taking time of three Judges of High Courts. It is indeed necessary and expedient now to lay down guidelines and strict parameters within which jurisdiction under Article 226/227 of the Constitution of India has to be exercised in such writ petitions arising out of CPC interlocutory proceedings. 11. The case in hand is just another example of that. At the fag end of the trial, when the matter was fixed for last more than two years for final arguments in an eviction sought on personal bonafide necessity, what the defendant seeks to do is to produce certain documents, which do not have any effect on the personal bonafide necessity of the plaintiff landlord. The premises in question were sought to be evicted as the plaintiff wanted to start his own software business being qualified software engineer and the document which is sought to be placed placed on record by the defendant which the learned counsel for the petitioner - defendant was at pains to say could dispel such bonafide necessity is an application for registration SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 15/17 of a firm of his father under the Sales Tax Law signed by the plaintiff as manager. One fails to understand how that document would wash away the bonafide and personal necessity of the plaintiff who wants to start his software business and waits therefor more than 6 to 7 years after filing of the suit even now. His signing an application for his father's firm's registration under the Sales Tax laws as manager has no relevance to his need to start his software business. For software business need, it is enough to show his qualification and desire to set up such business. Similarly copy of the sale deed of shops in question in favour of plaintiff and his brother are also of no relevance as neither title of the plaintiff is denied nor it is a suit for cancellation of such sale-deeds. The marriage invitation card, the learned counsel for the petitioner urged, was so richly printed, though the original was not shown to the Court and a photo-copy whereof was as black and white as it could be and the learned counsel submitted that the said card and one complaint against the plaintiff in some land deal matter showed that the plaintiff was so rich that he could buy another alternative accommodation for his software business. What a flight of imagination the defendant as well as SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 16/17 learned counsel for the defendant wanted to display, as if being a wealthy person and purchasing a tenant-occupied shop and then filing suit for eviction on the ground of personal and bonafide necessity was something prohibited in law. If such contention, pleas or evidences unfounded and irrelevant, which are sought to be raised in the open jurisdiction under Article 226 and 227 of the Constitution of India, least this court can do is to dismiss such petition out of hand deprecating filing of such frivolous petitions, which is hereby done. 12. Having gone through the petition and having heard the learned counsel for more than one hour and having perused the impugned order, this Court simply finds no error in the impugned order of the trial Court and nothing to interfere with the impugned order in any manner and the learned trial Court did right thing by rejecting the said application under Order 8 Rule 1 and 1A(3) C.P.C. filed at the fag end of the trial, when the matter was posted for final arguments and even that could not take place for last two years. The very purpose of Order 8 Rule 1 and Order 8 Rule 1A C.P.C. which cast an obligation upon the defendant to produce documents along with written SBCWP NO.4951/2008 – KISHAN CHAND V/S PANKAJ ABBANI. : JUDGMENT DTD.25.7.2008. 17/17 statement or with the leave of Court within 90 days, was sought to be frustrated by the defendant by filing such application at the fag end of the trial. Sub-Rule (3) cannot be stretched to allow such filing or producing documents at the fag end of the trial and to put the clock back at square one of trial. The said documents sought to be produced by the defendant were not only irrelevant but were deliberately produced at the fag end with a view to delay the trial. 13. The instant writ petition is, therefore, being thoroughly misconceived, is dismissed in limine. A copy of this order be sent to the trial Court as well as the plaintiff – respondent forthwith. It is further directed that the learned trial Court shall conclude the hearing of the final arguments expeditiously. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.4 Ss/-