STEELAGE INDUSTRIES LIMITED Vs. CHANDER SAGAI

JUDGEMENT

(1.) CAN a litigant invoke the inherent powers of a Civil Court under section 151 of the Code of Civil Procedure, 1908 for purposes of circumventing the statutory provisions on the ground that the interests of justice would condone such a procedure. The obvious answer is an emphatic no, particularly where what is defined as justice to one party, in reverse results in injustice to the opponent. The present petition deals with a mixed question of fact and law and touches upon one of the situations in which interference under Article 227 of the Constitution of India may be necessary, not to set aside an order but to correct it.

(2.) THE petitioners before me are the defendants in R. A. E. Suit No. 1386/4379 of 1987 instituted by the landlady Smt. Chander Sagai. The respondent has sought recovery of possession of the premises on the ground of bona fide use and requirement and the history of the proceeding discloses a rather unpleasant background. The respondent succeed in obtaining an order for expedition of the suit from this Court, and pursuant to this direction on 3-10-1991 the matter was listed before the Court of Small Causes, Bombay. It appears that on that day, according to the defendants, the respondent insisted on going on with the suit; whereas it is her version that the Court took up the matter because it was an expedited case. One Advocate Deshpande conducted the examination-in-chief in the morning session, which examination-in-chief was carried over to the afternoon. Thereafter rather extensive cross-examination of the witness was completed. On the next date of hearing, which was 8-10-1991, Advocate Murthy pointed out to the Court that he was the Counsel briefed in the matter, that the relevant documents pertaining to the proceeding were in his brief, that he met with a grievous accident on the way to Court and was not in a position to communicate this fact as a result of which the matter had proceeded in his absence. He requested for time to file an application, which was done on 15-10-1991. The application is rather vaguely worked, but in substance, it sets out the position that in the aforesaid circumstances the matter had effectively gone by default because the requisite evidence in relation to the grounds and the justification on the basis of which the relief was claimed from the Court, namely, the bona fide use by the landlady had not been brought out in evidence by Advocate Deshpande and that, consequently, the Court should permit the plaintiff to re-enter the witness-box and complete the examination-in-chief, after which alone the cross-examination should continue. This application was strongly opposed by the present petitioners, who are the defendants, principally on the ground that they had cross-examined the plaintiff at length and, according to them, demolished the case and that, consequently, the attempt now made was an afterthought and, in actual fact, was an attempt to fill up the lacunae and rebuild the plaintiffs case. The defendants also argued that there is virtually no legal sanction for such a procedure and they added that the plaintiff was duly represented by Advocate Deshpande, who had appeared on her behalf earlier, that no grievance was made to the Court either by the plaintiff or by that advocate about their being handicapped in any manner by Mr. Murthy absence, nor was any application made for adjournment and that, consequently, the application lacked bona fides. The trial Court passed an order to the effect that the plaintiff was entitled to re-enter the witness-box and complete her evidence by way of examination-in-chief, only to that extent as was set out in the pleadings. A consequential order for costs was also made. The order of the trial Court is under challenge. At the stage of admission the matter having been argued at some length, I considered it inappropriate to keep this proceeding pending and, therefore, set it down for final hearing.

(3.) MR. Shroff, learned Counsel appearing on behalf of the petitioners, has essentially contended that this is not a case which can be said to have gone by default because the plaintiff was represented by her advocate Mr. Deshpande, who conducted her examination-in-chief, and that the evidence would indicate that she is a business woman of considerable experience and, consequently, that she has not been prejudiced in any manner by the unfortunate accident to Mr. Murthy. Mr. Shroff also pointed out that the case is distinguishable from the ones where the Court exercising the inherent powers has given a litigant a fair chance. He therefore, submitted that the exercise of discretion by the trial Court itself was wholly uncalled for.