SENCI^ CD IN THE HON'BLE HIGH COURTOF CHHATTISGARH AT BILASPUR (C.G.) W.P.(Art 227) N0.^O0) / 2009 PETITIONERS : DEFENDANTS ^",^ .rf'" ^^- ^??:^-"" ^··^^a·r^^'>' ..•'",^"'^'' •j^" RESPONDENTS //'1. Sheela Saxena, widowof Shri. Sukhdev Prasad Saxena, aged about 75 years, resident of Village Singarbhat, Tehsil Kanker District Kanker (C.G.), 2. Smt. Anamika Hajela (wrongly mentioned in the plaint as Ajela) wife of Shri Rajendra Hajela, aged about 45 years, residentof JNV Colony, Bikaner, District Bikaner (Rajasthan), Both presently residing at 705, Dhreeraj Upwan Tower, Near Siddharth Nagar, Boriwali (East) Mumbai (Maharashtra) VERSUS '-1. Smt. Malti Bai, wife of Late Shri Sanjay Kumar (as alieged in the plaint), aged about 49 years. ^ 2. Ku. Rashmi, daughter of Late Shri Sanjay Kumar (as alleged in the plaint), aged about 30 years -3. Shri Vikash, son of Late Shri Sanjay Kumar (as alleged in the plaint), aged about 28 years. ^4. Prakash, sonof Late Shri Sanjay Kumar (as alleged in the plaint), aged about 26 years All resident of Village Singarbhat, Tehsil Kanker, District Kanker, Chhattisgarh 5. State of Chhattisgarh, through Collector Kanker, District Kanker, Chh^ttisgarh WRIT PETITION UNDER ARTICLE 227 OF THEJ^ONSTITUTIONQF INDIA FOR ISSUANCE OF APPROPRIATE WRIT IN THE NATURE OF CERTIORARI AND FOR ISSUANCE OF OTHER SUITABLE WRlfS, DIRECTION OR DIRECTION1LQRDER QR ORDERS DEFENDANT N0. 3 i-'! •Ai; Vs"' ^f.i^.^^^S; HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Sheela Saxena and anothes Smt. Malti Bai and others Postfor^-01-2010 Sd/1- Prashant Kumar Mishra Judge •'^^'fa®.^:^^^^^^^^^^ ^ST'^ 4-' '^, ,1 I ^J^iS' iinale Bench: Hon'Me Shri Jystlce Prashant Kumar IVIishri Petitioners Respondents versus Sheeia Saxena and another Smt. Malti Bai and others Shri Amrito Das, counsei for the petifioners. Shri Prakash Tiwari, counse! for respondents No.1 to 4. Shri Sumit Verma, Panei Lawyer for the State/respondeni .5. WritPetjtion jjnderArticIe 227 of the Constitution of India (Passed on \V January, 2010) ;!e 227 of the Constitution z The petitioners/defendants No.1 and 2,.in this petition under India, have assailed the orders dated )y the trial Court rejecting their of the Code of Civil Procedure for 2-9-2009 and 9-10-2009 passed b app'ication under Order 26 issuance of commission to examine defendant No.1 and ctosins the defendants' evidence in the suit. 2. The plalntjffs/respondents No.1 to 4 herein preferred a suif for snd permanent injunctlon with respect to 7.47 acres of !and Sage Singarbhat, Tahsil and District Kanker. The claim of )II the plaintiffs is on the pieadings that plaintiff No.1, being the widovi' and plaintiffs No.2, 3 and 4, being daughter and sons respectively of 'ate Sanjay Kumar are entitled to succeed to the suit property. The defendants are contesting the suit on the ground that uJd ^i^." .^ •^- — ^-- plaintiff No.1, Maltibai is not a Hindu and she had never been married with Sanjay Kumar. 3. It is born out from the record that the statements of plaintiffs' witnesses have already been completed and the matter was fixed for recording statements of the witnesses of the defendants. On 16-7- 2008, defendants No.1 and 2 moved an application under Order 18 Rule 3-A of the Code of Civil Procedure along with an affidavit of their counsel tosubmit that defendants No.1 and 2 are residing at Mumbai, therefore, they wish to examine the other witnesses first in point oftime and defendants No.1 and 2 shall examine themselves later on. The plaintiffs had objected to the said application as early as in July, 2008 that defendants No.1 and 2 are deliberately not submitting themselves for recording of evidence, however, in the interest of justice the said application under Order 18 Rule 3-A of the Code of Civil Procedure was allowed with an observation that the suit is pending since 1995 and, therefore, the parties should make all efforts to get the matter disposed of as early as possible. The Court directed the defendants to keep their witnesses present on the next date of hearing. Statement of D.W.-1 Ramlal Patel was recorded on 24-2-2009 (Annexure P-5) and statement of D.W.-2 Prafull Sujoriya was recorded on 9-10-2009. 4. The present application under Order 26 Rule 1 of the Code of -Civil Procedure (Annexure P-6) was filed on 31-8-2009 along with a medical certificate of defendant No.1, Sheela Saxena issued by a physician of Mumbai, namely, Dr. M.Y.Khanna on 24-8-2009. Other certlficate ofArihanf HeartClinic, Mumbai issued on 4-6-2009 and that '•'•'^ - 2 \ ^ liJiU---- of Dr. M.Y. Khanna of Mumbai issued on 24-8-2009 have also been submitted, 5. On perusal of the order-sheets of the trial Court, it woutd appear that the matter was fixed for settling the date for recording evidence of the partiesWay back on 27-6-1995 and thereafter evidence could not be recorded for one reason or the other. The evidence of the plaintiffs' witnesses came to be recorded for the first time after lapse of more than 10 years, i.e., on 21-11-2005. The plaintiffe dosed their evidence on 18-7-2006. 6. Learned counsel for the petitioners/defendants No.1 and 2 has argued that the power under Order 26 Rule 1 of the Code of Civil Procedure is discretionary and the learned triai Court has failed to exereise the discretion. He has relied on judgment of the Hon'ble Supreme Court inM/s. Filmistan Private Ltd.,Bombay vs. M/s. Bhagwandas Santprakash and another, AIR1971SC 61 and Bhagwan Swaroop and othws vs. Mool Chand and others, AIR 1983 SC 355 in support of his submission and to put forth the plea that rules or procedures are enacted for thepurpose of advancing justice and that laws of procedures by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. 7. Learned counsel for the petitioners/defendants No.1 and 2 has also relied on the judgment delivered by the Rajasthan Higti Court in Bal(fitawar Khan vs. Noor Mohamad, AIR 1986 Rajasthan 167. in which it has been held that even when the application for examination |uU tK lilUKaatl 1U*W" kli -^ witness on commission is supported by an affidavit of counsel, the application can be allowed. 8. On the other hand, learned counsel for respondents No.1 to 4/plaintiffs has argued that the application is belated and it has been filed only to protract the adjudication of the suit and the application being mals fide has rightly been dismissed by the trial Court. 9. In the present case, the application was supported with the medical certificate issued by the physician under whom petitioner No.l/defendant No.1 Sheela Saxena is obtainjng treatment. The certificate issued on 24-8-2009 says that she is suffering from Ischemic Heart Disease with Severe Osteoporosis and Multiple Fracture to Vertebral Body. In the certificate dated 24-8-2009, it is mentioned that she is not fit to travel because of her sickness. The respondents/plaintiffs have not contradicted the said bodily condition/ailment ofpetitioner No.l/defendant No.1 Sheela Saxena. !n the facts and circumstances of the case, this Court finds that one opportunity for recording the statement of the said witness on commission deserves to be allowed because if defendant No.1 herself is not examined thenshe may be prejudiced seriously in her defence in the trial Court. 1 may profitably quote paragraph 12 ofthe judgment rendered by the Hon'ble Supreme Court in Bhagwan Swaroop and others vs. Mool Chand and others (supra) as under: "12. It is no doubt true that a Code of Procedure 'is designed to facilitate justice and further its ends and it is not a penal enactment for punishment and penalty and not a thing designed to trip people up'. Procedural laws are no doubt devised and enacted for the purposes of advancing R • 'W'-se^ ^- c" -S'- justiee. Procedurat laws, however, are also laws and are enacted to be obeyed and implemented. The laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justtee wi!l be in a state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. As procedure is described to be the hand-maid of justice, the Court in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. It is, however, always to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the Court. Justice means justice to the parties in any particular case and justice according to law. if procedural laws are properly observed, as they should be observed, no problem arises for the Court for considering whether any lapse in the observance ofthe proceduralldw needs to be excused or overlooked. As 1 have already observed depending on the facts and circumstances of a particular case in the larger interests-of administration ofjustice the Court may and the Court in fact does, excuse or overlook a mere irregularity or a trivia! breach in the observance of any proeedural law for doing real and substantial justice to the parties and the Court passes proper orders which will serve the interests of justice best." 10. In the totality of the circumstances and in the larger interest of justice, this Court finds that a party to the litigation should be granted opportunity to prove its case and looking to the old age and ailment '.A~<;!*IL"^ •^.^'.•^^{ WSSSse •-'c:.i-»c ^" of the witness, who herself is defendant No.1 in the suit, this Court is of fhe opinion that the prayer for issuance of commission deserves to be allowed in the interest ofjustice. 11. In the result, the application dated 31-8-2009 (Annexure P-6) filed by defendants No.1 and 2 for examination of defendant No.1 Sheela Saxena on commission is allowed. The impugned orders dated 22-9-2009 and 9-10-2009 passed by the trial Court are set aside. The trial Court sha!l issue a Writ of commission for examination of defendant No.1 Sheela Saxena at her residence in Mumbai, however, keeping in view the long pendency of the suit, it jis directed that the examination of the said witness on commission shall positively be completed within a period of 2 months from the date of production of this order by the parties before the trial Court and no further opportunity shall be granted to the defendants to examine the said witness on commission. The instant writ petition is allowed with the aforesaid directions. No order as to costs. Sd//- Prashant Kumar Mishra Judge --.-^l 'G'-'P?!