mat? mm IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR w. Pfséi- 22} No. W/é’z /2009 WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA Petitioner z Purshottam, P Ia} WHF? Son of Gyan Das Satnami, Aged about 54 years, Occupation - Cultivator, R/o Village Baloda, Tahsil — ‘y Baloda, Distt. Janj gir Champa—(C.G.) Versus Respondents ’1 . Manharan Del—endo‘ NI: B S/o Balaram, Aged about 52 years, Kahara Cultiator Village Baloda, Distt. Janjgir Champa—(C.G.) w 2. Kashiram, S/ o Balram Swarnakar, Aged about 4O years, Cultivator, Village ~ Baloda, ‘1 Distt. Janjgir Champa~ (ca; l V @ y /3. State of Chhattisgarh, Acting Through Collector, Janjgir Champa~(C.G.) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT / WRITS, DIRECTION / DIRECTIONS, ORDER / ORDERS ETC. HIGH M“ COURT OF CHHATTISGARH AT BILASPUR ’ : Purshottam Versus : Manharan and others V Shri Ansari, Senior Advoca with Shri R.L. Bajpai, ounsel for the peitioner. Shri Awadh Tripathi with Shn' unil Sahu, counsel for respondents No.1 and 2. ~ Miss Sangeeta Mishra, Panel Lawyer for th State/respondent No.3 WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA (21..20) is is plaintifs petitio under aiticle 227 of the Constitution of Ina hallenging the rejecton ofhis application under section 151 of CPC seeking leave t examine a witness namel Sanjay Kumar S/o Brij Das in ieu of the earlier cited witness rij as who died uring pendency of the uit. (2) Plaintiff has preferred a suit for permanent injunctio Von or about 16/01/2003. He has ao prayed for a declaration that the boundaries mentioned in the sale deed executed by defendant No.1 in favour of defendant No.2 is incorrect. (3) The defendants have filed their written statement and are contesting the suit. !w L“. :a S.B: Honble Shri Prashant Kumar Mishra Writ Petition (227) No. 7462/2009 PETITIONER RESPONDENTS Agpearance: K.A. te c t S . e . ORAL ORDER 0910 Th n di c i o y l B D d s n ls éa (4) It is not disputed before this court that when the subject application was flied on 3/07/2008, the plaintiff’s evidence was already closed on 5/l2/2007 and the matter was posted for cross examining the defendant’s witnesses. In the application it was stated by the plaintiff that the land of one Brij Das is adjoining to suit land though it is divided by the road which was constructed on the private land after its acquisition and thus Brij Das, prior to acquisition of land an construction o road, was owner of the neighboring land. Affidavit of Brij Das under rder [8 Rule 4 was filed and he was cited as a witness. owever, during pendency of the suit Brij Das died some times in 2007. It was also stated in the application that thugh the cas was fixed for cross amining the defendant’s witesses, but it has not yet commenced and that the plainff wants to examine Sanjay S/o Brij Das so that the facts of the case are properly placed before the court and he plaintiff is granted coplete opportunity to prove his case. (5) The defendant/respondents No.1 and 2 objected to he grant of plication by submitting that the application has been submitted fil up the laca and t delay the proceedings. Learned counsel for respondents No.1 and 2 would submit that there i diderence between ‘m—Wew‘ the adidavit of Brij Das and the proposed adidavit of Sanjay Kumar. I Learned counsel has relied on Sriram Industrial Enterprises Ltd. Vs. Mahak Singh and others, (2007) 4 SCC 94 and Puran Ram ‘Vs. Bhaguram and another, (2008) 4 SCC 102 to submit that the d f O H o e ex n ti t m t ap to l un o s (3r present is not a case were jurisdiction under article 227 is required to be invoked. According to learned counsel for the respondent, the learned trial court has exercised the discretion and thus no interference is called for. (6) The plaintiff has cited Brij Das as his witness from the very beginning and after death of Brij Das, he now wants to submit his son Sanjay as his witness because presently Sanjay is in occupation of land belonging to Brij Das. Adidavit under Order 18 Rule 4 was sweared by Brij Das is already on ecord, therefore the nature of evidence sought to be adduced by the owner of the neighboring land is already disclosed to the defendant. This court has perused both the adidavits i.e. the affidavit of Brij Das s well as the affidavit of Sanjay. It appears from the affidavits that Sanjay is not brought in evidence to bring out wholly new case or to fill up some lacuna. True it s that Sanjay was not cited as a witness and the subject application i has been moved after closer of plaintifs evidence. However, there ’ was intervening event i between on account of death of witness Brij n Das. Had he been alive, the plaintiff would have examined Brij Das and would never have produced Sanjay as his witness. Be that as it may, the nature of averments made in both the attidavits would make it clear that nothing new has been sumitted in the evidence. l ‘ (7’) In the matter of Surya Dev Rai V-s. Ram Chander Rai and others, (2003) 6 SCC 675, Hon’ble Supreme Court has said that inter locutory orders passed by the subordinate courts are open to r a b % w €t¥f ‘ challenge under the supervisory jurisdiction of the High Court under article 227 of the Constitution of India, though the jurisdiction is limited and word of caution has been made in the said judgment and it has also been stated in paragraph 39 ofthe report thus: “Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a strait—jacket formula or rigid rules. Not less than otten, the High Court would be faced with a dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to eXercise self- restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where “a stitch in time would save nine.” At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates ofjudicial conscience enriched by judicial experience and practical wisdom ofthe judge.” (8) where “a stitch in time would save nine” with further observation that the power is there, but the exercise is discretionary, which will be! governed solely by the dictates of judicial conscience and practical wisdom. (9) Applying the principles in the present case, the ends ofjustice Ml would be served by giving one oppOrtunity to the petitioner/plaintiff to submit aHidavit of witness Sanjay under Order 18 Rule 4 of CPC As held by the Hon’b 1e Supreme Court, there may be cases / and to produce him for cross examination. (10) Permission is granted because his father Brij Das was already cited as witness who died during pendency of the suit. If ultimately the suit fails only on the ground that the owner of neighboiing land has not been exannned, the plaintiE may suffer irreparable loss. Therefore, this court is inclined to exercise its jurisdiction under article 227 of Constitution of India. (1 l) In the facts and circumstances of the case, while allowing the writ petition, it is also directed that the tn'al court shall do well to dispose of the suit as early as possible and preferably Within a period of six months from the date of receipt of certified copy ofthis order. M Sdl- l Prashant Kumar Mishra i; Judge is i é$ l