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Tuesday, October 30, 2012

"Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a Court. No person can be allowed to become a Judge in his own cause." = In M.C. Chockalingam v. V. Manickavasagam ((1974) 1 SCC 48), this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, ((1989) 4 SCC 131), it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind v. Jagat Singh ((1995) 3 SCC 426), this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession.. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner".


THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO          
CCC APPEAL No.225 OF 2001 and bt    

09-06-2011

Smt.Askari Begum and others

Md.Ayaz Khan and others

Counsicl of Petitioner:---

Counsil for Respondent:--

:JUDGMENT:  
       

        Both the appeals arise out of common property, which is a house property
bearing No.22-3-908 situated at Vazir Ali lane, Darulshifa, Hyderabad, in an
extent of 197 square yards.

2.      City Civil Court Appeal No.225 of 2001 arises out of the judgment in
O.S.No.756 of 1991 on the file of I Senior Civil Judge, City Civil Court,
Hyderabad, whereas the Second Appeal arises out of the judgment in A.S.No.292 of
1988 on the file of Additional Chief Judge, City Civil Court, Hyderabad.
        The parties are referred as in O.S.No.756 of 1991.

3.      The facts of the case are that the suit property originally belonged to
one Khaja Fateh Ali and he sold the same to Smt. Kaneez Fiza @ Putli Bi, W/o.
Syed Mohd.Thaqui Saheb on 18.01.1925 for a consideration of Rs.750/-.
Smt.Kaneez Fiza and her husband were residents of Parbhani of Maharashtra State
and they had only one daughter Kubra Begum, who is the 2nd plaintiff and who was
married to one Mohd.Ishaq and they had a daughter by name Sajeeda Begum, who is  
wife of the 1st plaintiff.   Syed Mohd. Thaqui Saheb died on 04.08.1930 leaving
behind him his wife and daughter.  The property was leased out to one Zaheer-ul-
Hasan, S/o. Naqui in 1935 and on 05.12.1959 Khaneez Fiza leased out the plaint
schedule property to the 2nd defendant on a monthly rent of Rs.20/-.  The 2nd
defendant was paying the rent.  On 01.03.1969 in a sound disposing state of mind
Kaneez Fiza executed a Will in favour of the 1st plaintiff conveying the
schedule property and therefore, the 1st plaintiff became entitled to the
property.  His name was also mutated in the Municipal records as per the orders
dated 24.10.1970.  The tenant attorned the tenancy and in 1974 the 1st plaintiff
requested the tenant to vacate the house.  The father of the 2nd defendant by
name Nazir Hussain was also living in the plaint schedule property along with
2nd defendant and he filed a suit in O.S.No.445 of 1974 on the file of IV
Assistant Judge, City Civil Court, Hyderabad, questioning the mutation in favour
of the 1st plaintiff and the said suit was dismissed on 07.12.1977 and
thereafter A.S.No.10 of 1978 was preferred to the Chief Judge, City Civil Court,
Hyderabad, which was also dismissed on 24.07.1978.   Thereafter, Nazar Hussain
instituted another suit O.S.No.345 of 1978 on the file of V Assistant Judge,
City Civil Court, Hyderabad, for declaration of his title and for permanent
injunction claiming title and perfecting right by adverse possession.  The suit
was contested by the 1st plaintiff and the said suit was dismissed holding that
there was no title but it was partly decreed granting injunction.  Thereafter,
the 1st plaintiff filed R.C.No.173 of 1980 on the file of III Additional Rent
Controller, Hyderabad, against the 2nd defendant for eviction, in which
relationship of landlord and tenant was denied and claimed that the property was
purchased by Md. Thaqui and that Syed Nazar Hussain, who is the son of Thaqui,
became entitled to the schedule property. The said R.C., was dismissed and
against that the appeal was filed and it was also dismissed.  As against the
judgment in O.S.No.345 of 1978 the plaintiff preferred appeal A.S.No.292 of 1988
on the file of Additional Chief Judge, City Civil Court, Hyderabad,  and the
said appeal was allowed on 07.12.1998 and as against that the Second Appeal
No.336 of 1990 was preferred.  Therefore, in view of the above circumstances,
the suit was filed for declaration of title as the legatee under the Will and
for recovery of the possession from the defendants along with damages.  In case
the 1st plaintiff is not entitled to the property as a legatee, in the
alternative the 2nd plaintiff  is entitled to the suit property as being the
sole daughter of Kubra Begum.

4.      The defendants filed a written statement denying several of the
allegations in the plaint and contending that the suit property belonged to
Kaneez Fiza. Sd.Mohammed Thaqui Saheb is the father-in-law of defendants Nos.1
and 10.  The property was purchased in the name of his wife by Syed Mohammed  
Thaqui Saheb.  The plaintiffs are not related to the said owners.  The
allegations that the property was in possession of the 2nd defendant or his
father as tenants is denied.  The alleged Will dated 01.03.1969 is denied and it
has not seen the light of the day for a long time and it is a fabricated one.
In the earlier litigation the said Will is found to be not true and since the
issue has been already decided it cannot be agitated again.  Municipal
Corporation is not competent to decide the title to the property.  The earlier
suit O.S.No.445 of 1974 was dismissed as it was not a comprehensive one and in
the earlier litigation the title of the plaintiffs was also rejected and the
judgment in A.S.No.10 of 1978 operates as res judicata.  In O.S.No.345 of 1978
on an erroneous reasoning the relief of title was not granted but however
injunction was granted.  The defendants are the absolute owners of the
properties.  The Will is not genuine and in view of the decisions in the earlier
proceedings between the parties, the plaintiff cannot claim title to the
property or any relief.

5.      On the basis of the above pleadings, the following issues have been framed
by the trial court, for trial:
1) Whether the Will dated 01.03.1969 is executed in a sound and disposing state
of mind and it is binding on plaintiffs?
2) Whether second plaintiff is the daughter of late Kaniz Fiza @ Putli Bee?
3) Whether the decree and judgment in O.S.No.445 of 1974 on the file of IV
Assistant Judge and O.S.No.345 of 1978 on the file of V Assistant Judge and
R.C.No.173 of 1980 on the file of III Additional Rent Controller operates as res
judicata?
4) Whether defendants have perfected their title by adverse possession?
5) Whether the suit claim is barred by time?
6) Whether plaintiffs are entitled to the relief of declaration and possession?
7) Whether the plaintiffs are entitled for damages if so to what amount?
8) To what relief?

6.      On behalf of the plaintiffs, PWs.1 to 4 were examined and marked Exs.A.1
to A.17.  On behalf of the defendants, DWs.1 and 2 were examined and marked
Exs.B.1 to B.11.

7.      After considering the evidence on record, the lower Court accepted the
Will set up by the plaintiffs and accordingly decreed the suit and aggrieved by
the said judgment and decree, the present appeal is filed by the defendants.

8.      So far as the Second Appeal No.336 of 1990 is concerned, earlier the
appellants have filed O.S.No.345 of 1978 claiming that the defendants are the
absolute owners of the property and they sought for a declaration of title and
injunction.  The same contentions were raised in that suit and the Court found
that the plaintiffs in O.S.No.756 of 1991 have no relationship with Kaneez Fiza
and also failed to establish the execution of the Will, but however by applying
the principles under Order II, Rule 2 of Code of Civil Procedure (for short,
'CPC') and on the principles of limitation, the relief of declaration was not
granted but injunction was granted.  As against that the appeal A.S.No.292 of
1988 was filed and the appeal was allowed dismissing the suit even with regard
to the partial relief of injunction.  As against that the Second Appeal is
filed.  Both the appeals were heard together.

9.      The points that arise for consideration are:
1) Whether the Will dated 01.03.1969 in favour of 1st plaintiff by name Mohd
Ayaz Khan in O.S.No.756 of 1991 is true, valid and confers rights on the
plaintiffs?
2) Whether the plaintiffs are entitled for the relief of the declaration and for
recovery of possession of the property as granted by the lower Court?
3) Whether on the principles of res judicata and in view of the earlier
decisions in O.S.No.445 of 1974 and 345 of 1978 and R.C.C.No.173 of 1980 the
plaintiffs are not entitled for any relief?

10.     So far as the 2nd appeal is concerned, the legal questions that falls for
consideration are:
1. Whether the application of the principles of Order.2, Rule 2 of CPC by the
Courts is proper?
2. Whether the principles of res judicata are not applicable?
3. Whether the application of the law of limitation by the Courts is legal, when
the possession of the property is found with the appellants herein, the denial
of injunction, consequent on the denial of title of the other party is valid?
4. Whether the mere non-filing of the appeal against certain findings the
appellants are estopped from showing and disputing the correctness or otherwise
of the findings?

11.     POINTS:
        In both the cases the litigation is old and it has started in the year,
1974 when on the basis of the Will, mutation is said to have been effected in
the municipal records in favour of the 1st plaintiff and consequently the suit
O.S.No.445 of 1974 was instituted.  The fact that the property belonged to
Kaneez Fiza is admitted by all sides and the fact that Nazar Hussain is the son
of Mohad. Thaqui, who had two wives and he is the son through the 1st wife and
Kaneez Fiza is the second wife is also undisputable.  Therefore, Nazar Hussain
becomes the heir of Kaneez Fiza.  It is to be noted that the specific claim made
by the plaintiffs that the 2nd plaintiff is the daughter of Kaneez Fiza and
Mohd.Thaqui and as a successor to the property was not accepted by the lower
Court and the relief based as a succession alternatively was dismissed by the
lower Court, no appeal is filed by her.
12.     The decision in both these matters depends on the findings as to whether
the Will set up by the plaintiffs, which was marked as Ex.A.4 is true and valid.
Apart from it, the further consideration will be as to whether the 2nd defendant
and his father Syed Nazar Hussain succeeds to the property of Kaneez Fiza even
if the benami nature of the sale is not believed.
13.     Touching on the rights of the parties, in all the earlier litigation
evidence was let in and determined by the Courts.  Evidently, apart from
O.S.No.445 of 1974 another suit, which has got relevancy is O.S.No.345 of 1978.
The said suit was filed by Syed Nazar Hussain and others for declaration of
title to the property and injunction against the plaintiffs in O.S.No.756 of
1991.  The copy of the said judgment, which was marked as Ex.A.10, does not in
dispute that in the said suit the present plaintiffs in O.S.No.756 of 1991 set
up title in themselves relying on the Will-Ex.A.4 and the Court has not accepted
the said Will and the said suit was partly decreed for injunction and the
declaration in favour of the appellants was rejected on the application of the
principles of Order II Rule 2 CPC.  In fact, strenuous effort was made by the
counsel for the respondents to support the judgment in O.S.No.756 of 1991 on the
ground that in the earlier suits the determination of the validity or
genuineness of the Will was not at all in issue and consequently even if the
claim of the plaintiffs in O.S.No.345 of 1978 is not accepted the suit
O.S.No.756 of 1991 is maintainable and the principles of res judicata have no
application.  In fact, the lower Court also was of the view that there was no
issue for determination of the genuineness of the Will and consequently the
principle of res judicata has no application.
14.     It is unfortunate that the lower Court has taken the view that as there
was no specific issue with regard to the genuineness of the Will, the decision
rendered earlier will not operate as res judicata.  It is to be mentioned that
for the application of the principles of res judicata what is essential is the
determination of the rights of the parties and the rival contentions based on
the pleadings.  It is the identity of the title in the litigations that has to
be taken into consideration and some times the identity of the actual property
may differ in the two cases.  But, in this case, the identity of the property
also does not differ as it relates to the same property.   It is the decision on
a particular aspect of the rights of the parties that has to be taken into
consideration with regard to the title to the property.  When a comprehensive
issue was framed with regard to title of the property claimed by one party and
opposed by the other party, then it is a determination of the rights of the
parties in issue in both the suits.  Merely because a separate issue with regard
to the source of title claimed by the defendants is not framed it does not mean
that the principles of res judicata are not applicable and that the decision in
the earlier suit is not binding.  It is to be noted that the decision of the
Court on the rights of the parties is essential and not the particular framing
of an issue.  In fact, when a suit for declaration of title is filed and the
title is denied by the defendants setting in himself a title under a particular
document, then the issue in the suit will be as to whom is the owner of the
property and any finding touching on that issue will be binding in the
subsequent suit.  Therefore, the contention of the counsel for the respondents
that as no issue was framed specifically with regard to the validity of the Will
in the earlier suits and the consequent finding of the failure to prove the Will
will not operate as res judicata cannot be accepted.  It is needless to say that
in a suit for title the person who establishes better title will be entitled to
the relief and if the title of the defendants who have set up an independent
title is established the suit of the plaintiffs will be dismissed.  But, if such
title is not accepted and when such findings have become final the party is
bound by it.  The limited concept of framing of issue in order to plead for non-
application of the principles of res judicata is untenable and the issue will be
the rights of the parties, which was necessary for determination and when such
determination is made Section 11 of the CPC will apply in all fours.  In this
connection, it is useful to refer to a decision reported in Ram Gobinda Daw and
others, (In all the Appeals) Vs. Smt. H.Bhakta Bala Dassi etc.,1, wherein it was
held that -
        "The test of res judicata is the identity of title in the two litigations
and not the identity of the actual property involved in the two cases but the
previous decision must be one on a title in respect of which a dispute has been
raised and which dispute was heard and finally decided by the Court.  Once the
decision on question of title becomes final it operates as res judicata even if
the value of the subject matter on which the former decision was pronounced was
comparatively very trifling.  When the decision was given by trial Court after
contest it operates as res judicata even if appeal therefrom might have been
dismissed on some preliminary grounds like limitation".
15.     Before adverting to the facts of the case several decisions were also
relied on by the parties.  The counsel for the respondents has relied on by a
decision reported in Alka Gupta Vs. Narender Kumar Gupta2, which dealt with the
scope of Section 11 of CPC and Order II Rule 2 CPC.  So far as Order II Rule 2
CPC is concerned, it was held that a plea has to be raised and an issue is to be
framed thereon, without which the Court cannot dismiss the suit.  It is also
found that if the second suit is based on different cause of action, Order II
Rule 2 CPC has no application.  So also reliance was placed on the decision
reported in Sulochana Amma Vs. Narayanan Nair3, about the application of Section
11 CPC.  The counsel for the respondents also relied on a decision reported in
S.Saraswathi V. Y.Laxminarayana4, wherein it was held that the judgment in Rent
Control proceedings will not operate as res judicata in a suit for declaration
of title.
16.     The learned counsel for the appellants relied on a decision reported in
Commissioner of Endowments and others Vs. Vittal Rao and others5, wherein it was
held that even if no issue was formally framed in the earlier suit when a point
was material and essential for decision of a case in earlier proceeding, which
has attained finality, it would operate as res judicata between the parties.  He
also relied on a decision reported in Swamy Atmananda and others Vs. Sri
Ramakrishna Tapovanam and others6,  wherein the scope of Section 11 CPC and  
Order II Rule 2 were considered and it was held even in the absence of a formal
issue when the parties have gone to trial on a necessary pleadings and filed the
documents the principles of res judicata were held applicable.  This being the
legal position, it is necessary now to consider about the result of the earlier
proceedings and the validity of them.
17.     The suit O.S.No.345 of 1978 was decided  on 29.01.1988.  In that suit, the
plaintiffs have set up the Will and pleaded absolute title.  But however, a
single issue was framed as to whether the plaintiffs are entitled for
declaration and consequential relief of injunction.  The Court has considered
the entire evidence on record and in Para No.20 of Ex.A.10, the judgment, the
Court held that -
        "In view of my above discussion the plaintiff is legal heir of Kaneez Fiza
and owner of the suit house and the defendant is no way concerned with the suit
house as he failed to establish his relationship with Smt. Kaneez Fiza or
alleged attornment of tenancy of plaintiff's son in his favour and also failed
to establish the execution of Will said to be executed by Smt. Kaneez Fiza.
Hence he has no right to challenge the title of the plaintiff being a stranger
to the suit house".
18.     It was also incidentally found by the learned Judge in para No.14 as
follows:
        "Even in this case also the defendant had not chosen to prove the same and
the learned counsel for the defendant fairly conceded that the said Will is not
valid because it is executed contrary to the Muslim Law as Smt.Kaneez Fiza had
no right to bequeath her entire property.  As such the contention of the
defendant that the Will executed in his favour is a valid document is false.
When Will is not proved and execution of the said document is rejected in the
earlier litigation I don't understand how the defendant is claiming his rights
over the suit premises.  Apart from this he also utterly failed to establish his
relationship with Kaneez Fiza as he admitted in his cross examination on that he
has no document to show that Kubra Begum is the daughter of Kaneez Fiza and also
deposed Kubra Begum and her husband are also alive".
        But however, in para No.19, the learned Judge held that -
        "Hence the present suit of the plaintiff is hit by Order 2 Rule 2 CPC as
he omitted the present relief which ought to have asked in the earlier suit
under the same causes of action.  Though the plaintiff had better title than the
defendant herein this legal impediment restraining him to entitle the relief.
Hence the plaintiff is not entitled for the relief of declaration of ownership
over the suit house as it is hit by Order 2 Rule 2 CPC.  But the defendant has
no right to interfere into the suit house taking advantage of this legal
impediment as he has no better title that the plaintiff".

19.     These findings were also considered in the appeal A.S.No.292 of 1988 and
the  copy of the judgment is marked as Ex.A.13.  The learned Judge in Para No.13
found that though the plaintiffs in O.S.No.756 of 1991 claimed title to the
property under the Will, the Will is not proved by any evidence.  The findings
of the lower Court that the Will is not proved and valid is accepted.
Therefore, it is quite clear in O.S.No.345 of 1978, which is comprehensive suit
for a determination of the title to the property between the parties, the rights
of the appellants were accepted but on technical ground by application of
principle of Order 2 Rule 2 CPC, the relief was not granted, whereas there was a
specific finding about the Will set up by the plaintiff in O.S.No.756 of 1991
and holding that does not proved.  It was also found by the trial Court in that
suit that empathetically as follows in Para No.16 of the judgment in O.S.No.345
of 1978-Ex.A.10:
                "As I already stated that the defendant failed to establish the
will, he is not the owner of the house and not having better title than the
plaintiff herein, when he is not derived any title from Kaneez Fiza he had no
right to challenge the plaintiff's title over the suit house by alleging that
the plaintiff stayed in the suit house by virtue of his son's tenancy, as it is
proved that the plaintiff is the sole legal heir of Kaneez Fiza and entitled for
the property being sole legal heir of Kaneez Fiza, as she had no other issues.
The defendant has not concerned with the property as he failed to prove that he
is entitled for the property, under a valid document as well as his relationship
with the said Kaneez Fiza".

20.     Therefore, the above decision in the earlier suit clearly goes to show
that the Will set up by the plaintiffs in O.S.No.756 of 1991 was not accepted as
it was not proved, no effort was made to establish the title set up under the
Will.  A strange argument was developed by the counsel for the respondents
stating that in the above suit, he was not called upon to prove the genuineness
of the Will and it was only with regard to the declaration of the title claimed
by the plaintiffs and consequently, the Will was not an issue directly and
substantially.  This is fallacious.  The title of the plaintiff in that suit was
resisted by setting up a rival title under the Will and in fact, the title of
the plaintiffs was accepted but however on technical grounds the relief was not
granted.  Therefore, the contention that as there was no issue and as the
plaintiffs were not called upon to prove the Will in that suit and consequently
it was not a decision on the Will has to be discarded.  Even in the appeal
against the said suit in A.S.No.292 of 1988 the title of the plaintiffs was also
not accepted.  Therefore, in view of the above circumstances, I have no
hesitation in holding that the title of the plaintiffs under the Will was not
proved and the Will was not accepted in O.S.No.345 of 1988 and consequently any
finding with regard to title to the property is binding in the subsequent suit
and the judgment of the Court in O.S.No.756 of 1991 in not applying the
principles of res judicata and taking the pains of a decision with regard to the
Will is not warranted and it is erroneous.

21.     Furthermore, the question arises as to whether the Will was proved by the
plaintiffs in this suit.  Evidently, the burden is on the propounder of the Will
to prove the execution of the same.  A Will is a compulsorily attestable
document and it has to be proved that the executant of the Will was conscious
and aware of the contents of the same.  In this case evidently, the relationship
of the plaintiffs with Kaneez Fiza was not accepted by the Courts.  The original
of the Will was not produced before the Court.  Ex.A.4 is only certified copy of
the Will and the reasons for not summoning or producing the original Will is not
forthcoming.  No permission was taken to dispense with the production of the
original.  If the original was marked in the earlier suit O.S.No.445 of 1974, it
could have been easily filed when certified copy was obtained.  The scribe of
the Will was not examined.  PW.2 is said to be aged about 55 years and a
resident of Parbhani and he claims that Kaneez Fiza executed the Will.  His
evidence does not show that the contents of the Will were dictated by the
testator and the reason for execution of the Will and that he signed along with
the other attesters to the witnessing of the testator.  He studied only up to
5th class and he does not know even the name of the husband of the Kaneez Fiza 
and he has not given evidence with regard to the Will earlier.  So also the
evidence of PW.4, who is said to be an Advocate and attester of the Will, is
also not sufficient to establish the Will.  He is not even able to give the name
of the testator and he claims that it was referred in Ex.A.4.  He does not even
say that the contents of the Will were declared by the testator and that it was
drafted in his presence and that he has signed to the witnessing of the
testator.  He does not even know the family particulars of Mohd. Thaqui and he
claims to be accidentally present when he went to the Registrar's Office and
therefore, he attested Ex.A.4, except that he has no prior information.  The
evidence of PW.4 appears to be artificial.  He was not even able to testify the
soundness of the mind of the testator at the time of execution of the Will. If
such is the evidence, the lower Court heard in holding that the evidence of
PWs.2 and 4 establishes the execution of the Will.  Therefore, it is quite clear
that there is no proper proof even in the present suit about the execution of
the Will and the legal requirement of soundness of mind and free Will of the
testator and the declaration of the intention to Will away the property by the
testator were not spoken either by PW.2 or PW.4.  They are also not specific
about the testators signing to their witnessing and they attesting the Will to
the witnessing of the testator.  Therefore, the lower Court has failed to apply
the legal principles in assessing the genuineness of the Will.

22.     Furthermore, the lower Court also ignoring the earlier finding of the
relationship of second plaintiff has given a finding that 2nd plaintiff is
related to Kaneez Fiza, which is also erroneous.  Therefore, the judgment of the
lower Court in accepting the Will and declaring the rights of plaintiff No.1 in
O.S.No.756 of 1991 is not valid by applying the principles of res judicata and
also for want of proof of the Will.

23.     So far as the application of the principles under Order II Rule 2 CPC in
O.S.No.345 of 1978 is concerned, I do not think that it was correct approach.
Evidently, as laid down by the Supreme Court, no issue was framed on that
aspect.  But however, the Court of its own motion considered the aspect.  Even
otherwise, the earlier suit O.S.No.445 of 1974 is essentially a challenge with
regard to the mutation effected in the Muncipal records and a claim to the
rights in the property.  It was not a substantial suit with regard to the title
to the property and ultiminately the suit was dismissed as it was not a suit for
a declaration of title.  As against that judgment in A.S.No.10 of 1978 under
Ex.A.7 the appellate Court found that both parties have failed to prove the
title to the property though endeavour was made and ultimately it was found in
para No.10 as follows:
"The mere fact that the name of the respondent has been entered into the
Municipal records in respect of the suit property, after the death of Kaneez
Fiza it does not follow that the respondent has title to the property the
Commissioner has in fact informed the appellant when he have a notice in
January, 1971 that the change of mutation does not effect the rights, if any, if
the appellant to the property".

24.     The judgment of the appellate Court clearly goes to show that the remedy
was to file a suit for declaration.  It was also found that the only course open
is to file a suit for declaration of title and on the basis of the decree that
may be obtained the correction.  It was also found that -
        "The only course open them for the appellant is to file a suit for
declaration of his title and on the basis of the decree that he may obtain he
should seek for correction in the municipal records".
It can be taken in other words as a permission for filing of the separate suit
for declaration of title even assuming for a moment the principles of Order II
Rule 2 CPC are applicable.  But, I have no hesitation in holding that the
dismissal of the suit O.S.No.445 of 1974 will not in any way bar the filing of
the suit O.S.No.345 of 1978 since the cause of action is quite different.  In
fact, the dismissal of the earlier suit with a direction to sue for declaration
of a title itself creates a fresh cause of action for institution of the suit
for declaration.

25.     Furthermore, while appreciating the maintainability of the suit for
declaration, in Para No.18 under Ex.A.10 the Court found that the suit has to be
filed within a period of three years for declaration of title, which was also
incidentally accepted by the appellate Court in A.S.No.292 of 1988 under
Ex.A.13.  Evidently, the suit is not based after dispossession.  Under Article
65 of the Limitation Act, the suit for declaration of title can be filed when
there is a cloud over the title and the limitation is 12 years and the period of
three years from the knowledge of the claim made by the other side as found by
lower Court does not arise.  Therefore, on this aspect both the appellate Court
and the lower Court have erred.  The period of limitation under Article 65 of
Limitation Act is applicable and the only plea that can be pleaded by the other
side is perfection of title by adverse possession beyond that time.  In this
case, evidently, there was no possession of the plaintiffs.  These two findings
are therefore erroneous and against the settled principles of law and the Courts
below have erred in applying the correct legal provision in the suit O.S.No.345
of 1978 concerning the Second Appeal.

26.     The principle of law is that a person in possession can protect the
possession against the entire world and even against a true owner. If there is a
settled possession of the property an injunction can be granted.  In this case,
evidently the plaintiffs in O.S.No.756 of 1991 have no title to the property
when once the Will is not believed and the title of the appellants is accepted
though the declaration is rejected erroneously on technical grounds.  The
finding of the appellate Court under Ex.A.13 that the relief of injunction also
cannot be granted as the evidence shows the 1st plaintiff is residing along with
the son and it cannot be said that the party is in possession of the said
property having right or title, and refusal of the injunction, is incorrect.  So
also, the finding of the appellate Court that as the declaration of title is
refused the consequential relief of injunction cannot be granted is also
erroneous.  It is to be noted that the declaration of title is not granted, on
an erroneous approach and not finding that there is no title or finding that the
other side is having title to the property.  Therefore, a person in possession
of the property can protect the possession as of right unless and until duly
evicted by person with title.  In this case, earlier attempts in the eviction
proceedings failed and the title under the Will being not accepted, the 1st
plaintiff in O.S.No.756 of 1991 has also no right to seek for recovery of
possession of the property.  Under such circumstances, the person in possession
is entitled for injunction even if declaration is refused.  In view of the
decision in O.S.No.756 of 1991 that the plaintiffs are not entitled for the
declaration of title, the possession has to be protected.  In this connection,
it is useful to refer to a decision reported in Rame Gowda (Dead) by LRs. Vs.
M.Varadappa Naidu (Dead) by LRs and another7, in that case the plaintiff filed a
suit alleging his title as also his possession over the disputed piece of land.
The trial court found that although the plaintiff had failed in proving his
title, he had succeeded in proving his possession over the suit property, which
he was entitled to protect unless dispossessed therefrom by due process of law.
On this finding the trial court issued an injunction restraining the defendant-
appellant from interfering with the peaceful possession and enjoyment of the
plaintiff-respondent over the suit property.     The defendant's appeal was
dismissed by the High Court.  He then appealed to the Supreme Court.  The
Supreme Court while considering the rival contentions and the principles of law
with regard to the possession and injunction and referring to earlier decisions
held that a person in settled possession is entitled for injunction and
possession itself is a better title when the defendant himself fails to prove
the title.  In this connection, it is useful to refer to the para Nos.7 and 8 of
the above Judgement, which is as follows:


"7.     The thought has prevailed incessantly, till date, the last and latest one
in the chain of decisions being Ramesh Chand Ardawatiya v. Anil Panjwani (2003)
7 SCC 350. In between, to quote a few out of several, in Lallu Yeshwant Singh v.
Rao Jagdish Singh (AIR 1968 SC 620 : (1968) 2 SCR 203), this Court has held that
a landlord did commit trespass when he forcibly entered his own land in the
possession of a tenant whose tenancy has expired. The Court turned down the
submission that under the general law applicable to a lessor and a lessee there
was no rule or principle which made it obligatory for the lessor to resort to
Court and obtain an order for possession before he could eject the lessee. The
Court quoted with approval the law as stated by a Full Bench of Allahabad High
Court in Yar Moh v. Lakshmi Das (AIR 1959 All 1 : 1958 All LJ 628 (FB)):
 "Law respects possession even if there is no title to support it. It will not
permit any person to take the law in his own hands and to dispossess a person in
actual possession without having recourse to a Court. No person can be allowed
to become a Judge in his own cause."  (AIR p.5, para 13)
In the oft-quoted case of Nair Service Society Ltd. v. K. C. Alexander (AIR 1968
SC 1165 : (1968) 3 SCR 163), this Court held that a person in possession of land
in assumed character of owner and exercising peaceably the ordinary rights of
ownership has a perfectly good title against all the world but the rightful
owner. When the facts disclose no title in either party, possession alone
decides. The Court quoted Loft's maxim- "Possessio contra omnes valet praeter
eur cui ius sit possessionis (he that hath possession hath right against all but
him that hath the very right)" and said.  (AIR p.1175, para 20)
"A defendant in such a case must show in himself or his predecessor a valid
legal title, or probably a possession prior to the plaintiff's and thus be able
to raise a presumption prior in time".
In M.C. Chockalingam  v. V. Manickavasagam ((1974) 1 SCC 48), this Court held 
that the law forbids forcible dispossession, even with the best of title. In
Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, ((1989) 4 SCC 131), it was held  
that where a person is in settled possession of property, even on the assumption
that he had no right to remain on the property, he cannot be dispossessed by the
owner of the property except by recourse to law. In Nagar Palika, Jind v. Jagat
Singh ((1995) 3 SCC 426), this Court held that disputed questions of title are
to be decided by due process of law, but the peaceful possession is to be
protected from the trespasser without regard to the question of the origin of
the possession. When the defendant fails in proving his title to the suit land
the plaintiff can succeed in securing a decree for possession on the basis of
his prior possession against the defendant who has dispossessed him. Such a suit
will be founded on the averment of previous possession of the plaintiff and
dispossession by the defendant.        
8. It is thus clear that so far as the Indian law is concerned the person in
peaceful possession is entitled to retain his possession and in order to protect
such possession he may even use reasonable force to keep out a trespasser. A 
rightful owner who has been wrongfully dispossessed of land may retake
possession if he can do so peacefully and without the use of unreasonable force.
If the trespasser is in settled possession of the property belonging to the
rightful owner, the rightful owner shall have to take recourse to law; he cannot
take the law in his own hands and evict the trespasser or interfere with his
possession. The law will come to the aid of a person in peaceful and settled
possession by injuncting even a rightful owner from using force or taking the
law in his own hands, and also by restoring him in possession even from the
rightful owner (of course subject to the law of limitation), if the latter has
dispossessed the prior possessor by use of force. In the absence of proof of
better title, possession or prior peaceful settled possession is itself evidence
of title. Law presumes the possession to go with the title unless rebutted. The
owner of any property may prevent even by using reasonable force a trespasser
from an attempted trespass, when it is in the process of being committed, or is
of a flimsy character, or recurring, intermittent, stray or casual in nature or
has just been committed, while the rightful owner did not have enough time to
have recourse to law. In the last of the cases, the possession of the
trespasser, just entered into would not be called as one acquiesced to by the
true owner".
       
The above decision clearly applies to the facts of the case and the appellants
in second appeal are entitled for the injunction as granted by the lower Court,
which was erroneously interfered by the appellate Court.

27.     Therefore, for all the above reasons, I find all the points in favour of
the appellants and I hold that the plaintiffs in O.S.No.756 of 1991 are not
entitled for the declaration of title and consequently City Civil Court Appeal
No.225 of 2001 and Second Appeal No.336 of 1990 are liable to be allowed.

28.     In the result, City Civil Court Appeal No.225 of 2001 is allowed and
O.S.No.756 of 1991 on the file of I Senior Civil Judge, City Civil Court,
Hyderabad,  is dismissed.  Second Appeal No.336 of 1990 is allowed and the
Judgment in A.S.No.292 of 1988 on the file of Additional Chief Judge, City Civil
Court, Hyderabad is set aside, and the judgment of the lower Court in O.S.No.345
of 1978 on the file of V Assistant Judge, City Civil Court, Hyderabad is
restored.  Each party shall bear their own costs.

?1 AIR 1971 SUPREME COURT 664      
2 (2010)10 Supreme Court Cases 141
3 (1994) 2 Supreme Court Cases 14
4 2004(6) ALT 95
5 AIR 2005 SUPREME COURT 454    
6 (2005)10 Supreme Court Cases 51
7 (2004)1 Supreme Court Cases 769  

Monday, October 29, 2012

Order VII Rule 11 of the Code of Civil Procedure, 1908 for rejection of the plaint -The petitioner filed I.A.No.2009/2008 under Order VII Rule 11 of the Code of Civil Procedure, 1908 for rejection of the plaint mainly on three grounds, namely, (i) that no part of cause of action had arisen within the jurisdiction of the Court in which the suit is filed; (ii) that the defendant was not properly described, thereby no cause arose in respect of the defendant as shown in the plaint and (iii) that the copyright of the plaintiff was not extended and the same was not in force when the suit was filed. The Court below dismissed the said application. Hence, the petitioner filed the present Civil Revision Petition.


HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

C.R.P.No.4666 of 2011

18-1-2012

M/s. Global Impex Represented by its ProprietorRajesh Mandoth, Mysore,Karnataka

M/s. Greenply Industries Ltd.,Represented by its G.P.A. Holder Dr. Rama
Krishna, Hyderabad.

 Counsel for petitioner : Sri N. Subba Rao

 Counsel for respondent : --

ORDER:
        This Civil Revision Petition arises out of order dated 15-7-2011 in
I.A.No.2009/2008 in O.S.No.55/2008 on the file of XIII Additional Chief Judge-
Fast Track Court, City Civil Court, Hyderabad.
        The petitioner is the defendant in O.S.No.55/2008 filed by the respondent,
alleging infringement of copyright.  The petitioner filed I.A.No.2009/2008 under
Order VII Rule 11 of the Code of Civil Procedure, 1908 for rejection of the
plaint mainly on three grounds, namely, (i) that no part of cause of action had
arisen within the jurisdiction of the Court in which the suit is filed; (ii)
that the defendant was not properly described, thereby no cause arose in respect
of the defendant as shown in the plaint and (iii) that the copyright of the
plaintiff was not extended and the same was not in force when the suit was
filed.  The Court below dismissed the said application.  Hence, the petitioner
filed the present Civil Revision Petition.
        At the hearing, Sri N. Subba Rao, learned counsel for the petitioner
strenuously contended that as the petitioner does not have any branches within
the jurisdiction of Hyderabad Court, no cause of action had arisen for filing
the suit in the Court at Hyderabad and that therefore the plaint ought to have
been rejected.  The learned counsel further stated that the cause title, as
originally shown in the pliant, wrongly described the defendant and that the
respondent failed to show that its copyright was in force at the time of filing
of the suit.
        I have carefully considered the above submissions of the learned counsel
for the petitioner.
        Order VII Rule 11 of the Code envisaged rejection of plaint on any of the
grounds mentioned in clauses (a) to (f) thereof.  As regards the first ground of
the petitioner that the plaint is liable to be rejected under clause (a) where
it does not disclose cause of action, it is not the pleaded case of the
petitioner that the plaint does not disclose the cause of action.  It has only
pleaded that no part of the cause of action had arisen within the jurisdiction
of the Hyderabad Court.  In my opinion, the issue of the plaint not disclosing
the cause of action is different and distinct from the issue relating to cause
of action not arising within the jurisdiction of the Court in which the suit is
instituted.  While in the former case, the plaint is liable to be rejected under
Order VII Rule 11(a) of the Code, in the latter case, it being a question of
fact to be culled out from the pleadings and evidence to be adduced by the
parties, the same needs to be adjudicated in the main suit.  As such, the plaint
cannot be rejected at this stage.
        As regards the plea of the petitioner that the defendant was not properly
described in the cause title, even according to the petitioner's counsel the
cause title was subsequently amended.  At any rate, improper description of the
defendant does not constitute a ground for rejection of the plaint under Order
VII Rule 11 of the Code.
        With respect to the plea of the petitioner that the copyright of the
plaintiff was not in force at the time of filing of the suit, this again is a
question which requires to be decided in the suit itself and the same is not
comprehended by any of the limbs of Rule 11 of Order VII of the Code.
        For the above mentioned reasons, I am of the opinion that the Court below
has not committed any jurisdictional error warranting interference of this Court
in exercise of its supervisory jurisdiction under Article 227 of the
Constitution of India.  The Civil Revision Petition is accordingly dismissed.
         As a sequel, CRP M.P.No.6633/2011 is disposed of as infructuous.
________________________  
Justice C.V. Nagarjuna Reddy
Date : 18-1-2012

Wednesday, October 24, 2012

Preventive Detention Law - "if no bail application is pending, there is no likelihood of the person in custody being released on bail, and therefore, the order of detention would be illegal", and the law laid down therein, having been consistently followed by the Apex Court in its subsequent judgments in Yumman Ongbi Lembi v. State of Manipur and Munagala Yadamma v. State of A.P., and in a very recent judgment in K. Nageswara Naidu v. Collector & District Magistrate, Y.S.R. Kadapa District, we are of the considered opinion that the order of detention passed by respondent No.1-Detaining Authority, as confirmed by respondent No.2-Government, suffers from his lack of subjective satisfaction, and as such, is liable to be set aside. - The law is well settled that if any one of the grounds of detention, which formed the basis for the Detaining Authority to pass the order of detention is found to be irrelevant, then the whole of the order of detention is liable to be set aside. Since on issue No.1 we have held that the order of detention passed by respondent No.1-Detaining Authority, as confirmed by respondent No.2- Government, is vitiated due to his lack of subjective satisfaction, and is liable to be set aside, we are not inclined to answer issue No.2. Accordingly, the writ petition is allowed. Consequently, the order of detention dated 11.01.2012, passed by respondent No.1-Detaining Authority, as confirmed by respondent No.2-Government by order dated 24.02.2012, is set aside. The detenu shall be released forthwith if he is not required in any other case. No costs.


THE HON'BLE SRI JUSTICE N.V.RAMANA AND HON'BLE SRI JUSTICE P.DURGA PRASAD        

WRIT PETITION No.12340 of 2012  

28.09.2012

Rage Mounika

The Collector & District Magistrate,YSR District, Kadapa and two others

Counsel for the Petitioner: MRS.D.Sangeetha Reddy

Counsel for the Respondents: The Advocate General

>HEAD NOTE:  

? Cases referred
1 (2011) 5 SCC 244
2 (2012) 2 SCC 176
3 (2012) 2 SCC 386
4 Criminal Appeal No. 1113 of 2012, dated 26.07.2012
5 (1975) 3 SCC 198
6 (1983) 4 SCC 301
7 (2012) 2 SCC 389
8 AIR 1964 SC 334
9 (2012) 2 SCC 386
10. Criminal Appeal No. 1113 of 2012, dated 26.07.2012

O r d e r: (Per Sri. N.V. Ramana, J.)

        The petitioner, who claims to be the wife of the detenu, namely Rage
Nagasekhar, who is now detained in Central Prison, Cherlapally, has filed this
writ petition praying for a Writ of Corpus, directing the respondents to produce
the detenu before this Court and set him at liberty forthwith.
        The Divisional Forest Officer, Kadapa, YSR District, informed respondent
No.1, namely the Collector and District Magistrate (hereinafter referred to as
'the Detaining Authority') that the detenu since last two years is involved in
illicit felling of red sanders, smuggling them to secret and unknown places in
India and abroad, and that he is involved in six forest offences, namely in O.R.
Nos. 81/2010-2011, dated 21.10.2010; 32/2011-2012, dated 08.06.2011; 59/2011-
2012, dated 12.09.2011 and 62/2011-2012, dated 14.09.2011 of Sidhout Range;
Offence Crime No. 107/2011, dated 22.09.2011 of Circle Inspector of Police,
Vontimitta and O.R. No. 92/2011-12, dated 05.10.2011 of Kadapa Range, which were
registered against him for the offences punishable under
Sections 20, 29 and 44 of the A.P. Forest Act, 1967 and Rule 3 of the A.P.
Sandal Wood and Red Sander Wood Transit Rules, 1969 and the provisions of
Sections 378 and 379 I.P.C.  In connection with the said offences, the detenu
was arrested and produced before the Magistrates concerned, who remanded him to
judicial custody.  While the detenu is in judicial custody, considering the fact
that the illegal activities of the detenu, is causing willful destruction of red
sanders trees, which is an endangered species, and causing damage to public
property, resulting in depletion of green cover and loss of national wealth, and
as his activities are prejudicial to the maintenance of public order, disturbing
the peace, tranquility and social harmony in the society, and as the forest laws
and ordinary law under which the detenu is being prosecuted are not sufficient
in the ordinary course to deal with him firmly, respondent No.1-Detaining
Authority, in exercise of the powers conferred on him under Section 3(1) and (2)
of the A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug
Offenders, Goondas, Immoral Traffic Offenders and Land Grabbing Act, 1986
(hereinafter referred to as 'the Preventive Detention Act'), with a view to
prevent the detenu from commission of similar such activities, which is
resulting in plundering of national wealth, vide order dated 11.01.2012, ordered
the detention of the detenu in prison.   Thereafter, based on the
recommendations of the Advisory Board, respondent No.2-Government, by order
dated 24.02.2012, confirmed the order of detention.    Hence, questioning the
said order of detention, passed by respondent No.1-Detaining Authority, for
detention of the detenu in prison, as confirmed by respondent No.2-Government,
the petitioner filed the present writ petition.
The learned counsel for the petitioner submitted that the cases registered
against the detenu for the offences punishable under the A.P. Forest Act and the
Indian Penal Code, which formed the basis for passing the order of detention by
respondent No.1-Detaining Authority, are false.  At the time when the order of
detention was passed by respondent No.1-Detaining Authority, the detenu was in
judicial custody in connection with one of the cases registered against him, and
he having not made any application for his release on bail, the possibility of
his coming out of jail and indulging in commission of similar such activities,
which are allegedly prejudicial to the maintenance of public order does not
arise.  Since respondent No.1-Detaining Authority, without considering this
aspect of the matter, has passed the order of detention, the same suffers from
his lack of subjective satisfaction, and therefore, is liable to be set aside.
In support of this argument, he placed reliance on the judgment of a three-Judge
Bench of the Apex Court in Rekha v. State of Tamil Nadu1, which was consistently
followed subsequently by the Apex Court in Yumman Ongbi Lembi Leima v. State of
Manipur2, Munagala Yadamma v. State of A.P.3 and very recently in an unreported
judgment in K. Nageswara Naidu v. Collector and District Magistrate, YSR Kadapa
District4.
The learned counsel for the petitioner next submitted that the ordinary law
under which the detenu is being prosecuted is sufficient to deal with the
alleged activities of the detenu, and as such, there was no necessity for
respondent No.1-Detaining Authority, to detain the detenu invoking the
Preventive Detention Law.
The learned counsel for the petitioner thus prayed that the writ petition be
allowed and the order of detention passed by respondent No.1-Detaining Authority
against the detenu, as confirmed by respondent No.2-Government, be set aside.
On behalf of the respondents, respondent No.1-Detaining Authority, namely the
Collector and District Magistrate filed counter.  The learned Assistant
Government Pleader representing the learned Advocate General for the
respondents, reiterating the stand taken by the respondents in their counter
submitted that the detenu is habitually indulging in illicit felling of red
sanders trees by trespassing into forest area, smuggling and transporting them
out of the reserved forest owned by the State, that his activities are not only
dangerous to the rare species of red sanders, but also causing damage to the
pristine forest wealth.  His activities are also prejudicial to the maintenance
of public order, and for commission of such offences, the detenu is punishable
under the provisions of the A.P. Forest Act and the Rules made thereunder and
the provisions of the Indian Penal Code.  The detenu has committed as many as
six offences in a span of two years, and as the ordinary laws under which he is
being prosecuted are not sufficient to deal with his activities, respondent
No.1-Detaining Authority, with a view to prevent the detenu from indulging in
commission of similar such crimes, has passed the order of detention by invoking
the Preventive Detention Law, which was confirmed by respondent No.2-the
Government.  She further submitted that though the detenu is in judicial custody
and has not made any application for his release on bail, but the same by
itself, does not bar the Detaining Authority, to pass an order of detention
under the Preventive Detention Law, if the Detaining Authority is satisfied that
there is every possibility of the detenu being released on bail in the pending
cases, and upon such release, the detenu would indulge in commission of similar
such offences and act in a manner breaching public order or law and order, and
therefore, there is every need to detain him under the Preventive Detention Law.
In support of her arguments, she placed reliance on the judgments of the Apex
Court in Haradhan Saha v. State of West Bengal5, Alijan Mian v. District
Magistrate6 and Reddeiah v. Government of A.P.7.  Hence, she prayed that the
order of detention, passed by respondent No.1-Detaining Authority, as confirmed
by respondent No.2-Government, be upheld and the writ petition be dismissed.
        Heard the learned counsel for the petitioner and the learned Assistant
Government Pleader representing the learned Advocate General for the
respondents.
In the light of the arguments advanced by the respective parties, the following
two issues arise for consideration, in this writ petition:
1. Whether the order of detention passed by respondent No.1-Detaining Authority,
as confirmed by respondent No.2-Government, suffers from lack of subjective
satisfaction of the Detaining Authority, because at the time when the order of
detention was passed, the detenu was in judicial custody and he did not move any
application for his release on bail?
2. Whether the ordinary criminal laws, namely A.P. Forest Act and the Indian
Penal Code, under which the detenu is charged and is being prosecuted, are
sufficient to deal with the activities of the detenu, and as such, there is no
necessity for respondent No.1-Detaining Authority, to pass order of detention
against the detenu?

Before we proceed to answer the above issues, we would like to briefly discuss
what is preventive detention?
Preventive Detention, the law is well settled, that it is not punitive, but only
preventive, and therefore, before passing an order of detention against a
person, which takes away his liberty, the Detaining Authority, has to satisfy
for itself whether there is sufficient material placed before him, to prevent
the person from acting in a manner prejudicial to public order or the like, in
the near future.
A Constitution Bench of the Apex Court in Haradhan Saha v. State of West Bengal,
stated the concept of preventive detention, as follows:
The essential concept of preventive detention is that the detention of a person
is not to punish him for something he has done but to prevent him from doing it.
The basis of detention is the satisfaction of the Executive of a reasonable
probability of the likelihood of the detenu acting in a manner similar to his
past acts and preventing him by detention from doing the same.

The Apex Court further elaborated the power of detention of the Detaining
Authority, as follows:
The power of preventive detention is qualitatively different from punitive
detention.  The power of preventive detention is a precautionary power exercised
in reasonable anticipation.  It may or may not relate to an offence.  It is not
a parallel proceeding.  It does not overlap with prosecution even if it relies
on certain facts for which prosecution may be launched or may have been
launched.  An order of preventive detention may be made before or during
prosecution.  An order of preventive detention may be made with or without
prosecution and in anticipation or after discharge or even acquittal.  The
pendency of prosecution is no bar to an order of preventive detention.  An order
of preventive detention is also not a bar to prosecution.

In Alijan Miah v. District Magistrate, a three-Judge Bench of the Apex Court,
considered whether preventive detention, is preventive or punitive, and held as
follows:
Preventive detention is an anticipatory measure and does not relate to an
offence while the criminal proceedings are to punish a person for an offence
committed by him.  They are not parallel proceedings.

In Rekha v. State of Tamil Nadu, a three-Judge Bench of the Apex Court, in the
light of the Constitutional provisions, having considered the scope, nature and
limits of preventive detention, whether it is preventive or punitive, held as
follows:
It is all very well to say that preventive detention is preventive not punitive.
The truth of the matter, though, is that in substance a detention order of one
year (or any other period) is a punishment of one year's imprisonment.  What
difference is it to the detenu whether his imprisonment is called preventive or
punitive?  Further, in cases of preventive detention no offence is proved and
the justification of such detention is suspicion or reasonable probability, and
there is no conviction which can only be warranted by legal evidence.
Preventive detention is often described as a "jurisdiction of suspicion".  The
detaining authority passes the order of detention on subjective satisfaction.
Preventive detention is, by nature, repugnant to democratic ideas and an
anathema to the rule of law.  No such law exists in the USA and in England
(except, during war time).  Since, however, Article 22(3)(b) of the Constitution
permits preventive detention, it cannot be held illegal.  But the power of
preventive detention must be confined to very narrow limits, otherwise the great
right to liberty won by our Founding Fathers, who were also freedom fighters,
after long, arduous and historical struggles, will become nugatory.  To prevent
misuse of this potentially dangerous power the law of preventive detention has
to be strictly construed and meticulous compliance with the procedural
safeguards, however technical, is mandatory and vital.

From the law, as laid down by the Apex Court, in the afore-mentioned judgments,
it is clear that power of preventive detention has to be strictly construed and
meticulous compliance with the procedural safeguards have to be followed by the
Detaining Authority while passing an order of detention against a person for his
detention in prison.
In re issue No. 1:

        The learned counsel for the petitioner submitted that when the detenu is
in judicial custody and when he did not even file any application for his
release on bail, the possibility of his coming out of jail in the near future
and indulging in commission of similar such activities, which are allegedly
prejudicial to the maintenance of public order, does not arise.  Therefore,
there was no necessity for respondent No.1-Detaining Authority to pass an order
of detention under the Preventive Detention laws against the detenu.   However,
the learned Assistant Government Pleader, contended that Detaining Authority can
pass an order of detention even while the detenu is in judicial custody, if he
is satisfied that there is likelihood of the detenu being released on bail in
the near future and upon such release, he would indulge in commission of similar
such activities, which are prejudicial to the maintenance of public order and
prejudicial to the interests of the State.  She further submitted that since
there was likelihood of the detenu being released on bail in the pending cases,
with a view to prevent the detenu from commission of similar such offences upon
his release on bail, respondent No.1-Detaining Authority has passed the order of
detention.  Therefore, she submitted that no interference is warranted with the
order of detention passed by respondent No.1-Detaining Authority, as confirmed
by respondent No.2-Government, and prayed that the writ petition be dismissed.
To appreciate this contention, it would be appropriate if a reference is made to
the judgments of the Apex Court, relied upon
by the counsel in support of their respective contentions.
The question, can a person in jail custody be served with an order of detention
while he is in such custody, was considered by the Constitution Bench of the
Apex Court n Rameshwar v. District Magistrate8.  The Apex Court having
considered the said question in the light of the provisions of Section 3 of the
Preventive Detention Act, held:
The first stage in the process is to examine the material adduced against a
person to show either from his conduct or his antecedent history that he has
been acting in a prejudicial manner.  If the said material appears satisfactory
to the authority, then the authority has to consider whether it is likely that
the said person would act in a prejudicial manner in future if he is not
prevented from doing so by an order of detention.  If this question is answered
against the petitioner, then the detention order can be properly made.  It is
obvious that before an authority can legitimately come to the conclusion that
the detention of the person is necessary to prevent him from acting in a
prejudicial manner, the authority has to be satisfied that if the person is not
detained, he would act in a prejudicial manner and that inevitably postulates
freedom of action to the said person at the relevant time.  If a person is
already in jail custody, how can it rationally be postulated that if he is not
detained, he would act in a prejudicial manner?  At the point of time when an
order of detention is going to be served on a person, it must be patent that the
said person would act prejudicially if he is not detained and that is a
consideration which would be absent when the authority is dealing with a person
already in detention.  The satisfaction that it is necessary to detain a person
for the purpose of preventing him from acting in a prejudicial manner is thus
the basis of the order under Section 3(1)9a), and this basis is clearly absent
in the case of the petitioner.
(emphasis supplied)

In Alijan Mian v. District Magistrate, on which the learned Assistant Government
Pleader placed heavy reliance to justify the order of detention, there the order
of detention was passed by the Detaining Authority against the detenu on the
allegation that the detenu threw a bomb against his opponents and opened gun
fire in a thickly populated residential colony and thereby created great panic
and alarm in the area, which adversely affected the public order. The petitioner
unsuccessfully challenged the detention order in writ petition before the Patna
High Court.  However, the petitioner instead of filing appeal, moved petition
under Article 32 before the Supreme Court.  A three-Judge Bench of the Apex
Court, having regard to the gravity of the offence, alleged to have been
committed by the detenu, upheld the order of detention passed against him,
holding:
It may be pointed out at the very outset that the detaining authority was alive
to the fact that the petitioners were in jail custody on the date of the passing
of the detention orders as will be clear from the following statement in the
grounds of detention:
The subject is in jail and is likely to be released on bail ... In the
circumstances, I am satisfied that if he is allowed to remain at large, he will
indulge in activities prejudicial to the maintenance of public order.
The position would have been entirely different if the petitioners were in jail
and had to remain in jail for a pretty long time.  In such a situation there
could be no apprehension of breach of 'public order' from the petitioners.  But
the detaining authority was satisfied that if the petitioners were enlarged on
bail, of which there was every likelihood, it was necessary to prevent them from
acting in a manner prejudicial to public order.

The Apex Court further held that if the detenu was in jail and had to remain in
jail for a pretty long time, then in such case, passing the order of detention
would not be justified, and in case, the Detaining Authority is satisfied that
there is every likelihood of the detenu being released on bail, then the order
of detention, to
prevent the detenu from acting in a manner prejudicial to public order, would be
justified.
In Rekha v. State of Tamil Nadu, upon which the learned counsel for the
petitioner placed reliance, the detenu was alleged to be habitually changing the
labels of expired drugs and redistributing the same for sale to the general
public.  The detenu was in judicial custody, and his relatives were taking
action to get him released on bail by filing bail applications before the courts
and that in similar cases, courts were granting bail, and as such, there was
real possibility of his coming out on bail in the above case by filing bail
application, and if he comes out on bail, he would indulge in further activities
which will be prejudicial to the maintenance of public health and order.  Having
regard to this, the Detaining Authority, with a view to curb his activities,
passed the order of detention.  The wife of the detenu unsuccessfully questioned
the order of detention before the High Court of Tamil Nadu.  In the appeal
before the Apex Court, it was contended that since the detenu was in judicial
custody, the order of detention could not have been passed by the Detaining
Authority.  In order to consider the said contention, the Apex Court perused the
grounds of detention, and upon perusing them, observed as follows:
A perusal of the above statement in para 4 of the grounds of detention shows
that no details have been given about the alleged similar cases in which bail
was allegedly granted by the concerned court.  Neither the date of the alleged
bail orders has been mentioned therein nor the bail application number nor
whether the bail orders were passed in respect of the co-accused on the same
case nor whether the bail orders were passed in respect of other co-accused in
cases on the same footing as the case of the accused.  All that has been stated
in the grounds of detention is that "in similar cases bails were granted by the
courts".  In our opinion, in the absence of details this statement is mere ipse
dixit, and cannot be relied upon.

The Apex Court further observed:
In our opinion, if details are given by the respondent authority about the
alleged bail orders in similar cases mentioning the date of the orders, the bail
application number, whether the bail order was passed in respect of co-accused
in the same case, and whether the case of the co-accused was on the same footing
as the case of the petitioner, then, of course, it could be argued that there is
likelihood of the accused being released on bail, because it is the normal
practice of most courts that if a co-accused has been granted bail and his case
is on the same footing as that of the petitioner, then the petitioner is
ordinarily granted bail.  However, the respondent authority should have given
details about the alleged bail order in similar cases, which has not been done
in the present case.  A mere ipse dixit statement in the grounds of detention
cannot sustain the detention order and has to be ignored.

The Apex Court having observed so, held as follows:
Where a detention order is served on a person already in jail, there should be a
real possibility of release of a person on bail who is already in custody
provided he has moved a bail application which is pending.  It follows logically
that if no bail application is pending, then there is no likelihood of the
person in custody being released on bail, and hence the detention order will be
illegal.  However, there can be an exception to this rule, that is, where a co-
accused whose case stands on the same footing had been granted bail.  In such
cases, the detaining authority can reasonably conclude that there is likelihood
of the detenu being released on bail even though no bail application of his is
pending, since most courts normally grant bail on this ground.  However, details
of such alleged similar cases must be given, otherwise the bald statement of the
authority cannot be believed.

Holding as above, the Apex Court, set aside the order of the High Court, which
upheld the order of detention passed against the detenu by the Detaining
Authority.
In the instant case, the respondents except stating that the detenu is moving
bail applications and there is every possibility of his being released on bail,
did not file any material to show that the detenu moved any bail application or
some other person, who along with the detenu is co-accused in the case, was
released on bail.  On the other hand, the learned Assistant Government Pleader,
basing on the counter averments admitted that the detenu has not filed any
applications for his release on bail and that when the order of detention was
passed, the detenu was still in judicial custody.
In Yumman Ongbi Lembi Leima v. State of Manipur, on which the counsel for the
petitioner placed reliance, the detenu was detained in pursuance of an order of
detention passed under the provisions of the National Security Act, 1980.  One
of the submissions advanced was the order of detention was passed against the
detenu because there was possibility of he being released on bail as he was in
custody in connection with other offences.  By the time the order of detention
came to be passed, he was already released on bail.  The High Court of Manipur
upheld the order of detention.  However, in appeal the Apex Court, following the
judgment in Rekha v. State of Tamil Nadu, held that the exercise of
extraordinary powers of detaining an individual in contravention of the
provisions of Article 22(2) of the Constitution, was not warranted, where the
grounds of detention did not disclose any material which was before the
Detaining Authority, other than the fact that there was every likelihood of the
petitioner therein being released on bail in connection with the cases in
respect whereof he had been arrested, to support the order of detention.  And
holding so, the Apex Court, set aside the order of detention passed against the
detenu.
In Munagala Yadamma v. State of A.P.9, the order of detention was passed against
the detenu by the Detaining Authority on the ground that he was habitually
indulging in commission of offences under the provisions of the A.P. Prohibition
Act and the Rules made thereunder.  The High Court upheld the order of
detention.  But in appeal, the Apex Court, following the judgment of the three-
Judge Bench in Rekha v. State of Tamil Nadu, set aside the order of detention,
which was confirmed by the High Court.
In G. Reddeiah v. Government of A.P., on which the learned Assistant Government
Pleader placed reliance, the order of
detention was passed by the Detaining Authority on the ground the detenu was
habitually indulging in commission of same offences i.e. trespass in forest
area, illicit cutting, felling, smuggling and
transporting of red sanders wood from the reserved forest owned by the State.
The brother-in-law of the detenu challenged the order of detention before this
Court.  This Court upheld the order of detention passed by the Detaining
Authority.  In appeal before the Apex Court, the appellant sought quashing of
the order of detention placing reliance on the judgment in Rekha v. State of
Tamil Nadu.  A two-Judge Bench of the Apex Court, having distinguished the said
judgment on facts of the said case with the facts of the case before it, refused
to nullify the order
of detention, as upheld by this Court, holding thus:
 Though an attempt was made to nullify the order of detention by drawing our
attention to the latest decision of this Court in Rekha v. State of Tamil Nadu,
on going through the factual position and orders therein and in view of the
enormous activities of the detenu violating various provisions of IPC, the A.P.
Act and the Rules, continuous and habituality in purusing the same type of
offences, damaging the wealth of the nation and taking note of the abundant
factual details as available in the grounds of detention and also of the fact
that all the procedures and statutory safeguards have been fully complied with
by the detaining authority, we are of the view that the said decision is not
applicable to the case on hand.  On the other hand, we fully agree with the
reasoning of the detaining authority as approved by the Government and upheld by
the High Court.

The learned Assistant Government Pleader submitted that
the nature of offences alleged to have been committed by the detenu in Rekha v.
State of Tamil Nadu are different from the nature
of offences alleged to have been committed by the detenu in the present case,
which are akin to the nature of offences alleged in Reddeiah v. Government of
A.P., and therefore, the law laid down in Rekha v. State of Tamil Nadu, cannot
be applied to the facts of the present case.
She submitted that in Rekha v. State of Tamil Nadu, where the Apex Court set
aside the order of detention passed by the Detaining Authority, the detenu was
alleged to be habitually changing the labels of expired drugs and redistributing
the same for sale.  But in the instant case, as also in Reddeiah v. Government
of A.P., the order of detention was passed by the Detaining Authority on the
ground that the detenu was habitually indulging in commission of same offences
i.e. trespassing into forest area, illicit cutting, felling, smuggling and
transporting of red sanders wood from the reserved forest owned by the State,
and to prevent commission of such offences by the detenu, the Detaining
Authority passed the order of detention.  Since in similar set of facts, in
Reddeiah v. Government of A.P., the Apex Court after distinguishing the facts of
the case in Rekha v. State of Tamil Nadu, refused to interfere with the order of
detention, she contended that the law laid down in Reddeiah v. Government of
A.P., which confirmed the order of the High Court, upholding the order of
detention, has to be followed.
It is no doubt that the nature of offences alleged to have
been committed by the detenu herein are similar to the nature of offences
alleged to have been committed by the detenu in
Reddeiah v. Government of A.P., but the fact remains, in a recent case in K.
Nageswara Naidu v. Collector & District Magistrate, Y.S.R. Kadapa District10,
the Detaining Authority has passed an order of detention against the detenu with
a view to prevent him
from causing excessive damage to the national wealth by
trespassing, cutting, dressing and transporting the red sanders wood from the
forest.  The said order of detention was passed, when the detenu was in judicial
custody in execution of a non-bailable warrant in Crime No. 110 of 2007 of
Chinthakommadinne Police Station, and the grounds of detention were served on
him, while he was lodged in Central Prison, Kadapa.   The order of detention was
questioned by the detenu before this Court by filing writ petition. This Court
following the judgment of the two-Judge Bench of the Apex Court in Reddeiah v.
Government of A.P., upheld the order of detention, but in appeal, the Apex Court
held that when the decision of a three-Judge Bench of the Apex Court in Rekha v.
State of Tamil Nadu, was available on the same issue, judicial discipline
demands that Division Bench should follow the same, and observing so, the Apex
Court held that judicial discipline is one of the fundamental pillars on which
the judicial edifice rests, and if such discipline is eroded, the entire edifice
will be affected.  Accordingly, following the three-Judge Bench judgments Rekha
v. State of Tamil Nadu and Yumman Ongbi Lembi v. State of Manipur, the Apex
Court upheld the contentions advanced on behalf of the detenu, set aside the
order of the High Court and consequently quashed the order of detention.
It is the contention of the learned Assistant Government Pleader that since the
law laid down by the Constitution Bench of the Apex Court in Haradhan Saha v.
State of West Bengal, was not
considered in proper perspective by the three-Judge Bench in Rekha v. State of
Tamil Nadu, the same cannot be relied upon.  This contention cannot be accepted
because in Rekha v. State of Tamil Nadu, the three-Judge Bench of the Apex
Court, took note of the observations made by the Constitution Bench in Haradhan
Saha v. State of West Bengal, to the effect "the essential concept of preventive
detention is that the detention of a person is not to punish him for something
he has done but to prevent him from doing it".  Be that as it may, whether the
Apex Court in Rekha v. State of Tamil Nadu, had considered the effect of the
Constitution Bench judgment in Haradha Saha v. State of West Bengal in proper
perspective or not, is a matter which this Court cannot go into.
Since the order of detention was passed by respondent No.1-Detaining Authority,
as confirmed by respondent No.2-Government, while the detenu was in judicial
custody and that too when he did not make any application for his release on
bail, and in such a situation, the possibility of his being released on bail,
does not arise.  And considering the fact that the validity of order of
detention, passed while the detenu was in judicial custody and when no
application for his release on bail was pending, was already considered by a
three-Judge Bench of the Apex Court in Rekha v. State of Tamil Nadu, wherein it
was held that "if no bail application is pending, there is no likelihood of the
person in custody being released on bail, and therefore, the order of detention
would be illegal", and the law laid down therein, having been consistently
followed by the Apex Court in its subsequent judgments in Yumman Ongbi Lembi v. 
State of Manipur and Munagala Yadamma v. State of A.P., and in a very recent
judgment in K. Nageswara Naidu v. Collector & District Magistrate, Y.S.R. Kadapa
District, we are of the considered opinion that the order of detention passed by
respondent No.1-Detaining Authority, as confirmed by respondent No.2-Government, 
suffers from his lack of subjective satisfaction, and as such, is liable to be
set aside.  Accordingly, we answer issue No.1 in favour of the petitioner and
against the respondents.
In re issue No.2:
It is contended by the petitioner that since the ordinary laws, namely the A.P.
Forest Act and the Rules made thereunder and the provisions of the Indian Penal
Code, under which the detenu is charged and is being prosecuted, are sufficient
to deal with the situation, there was no necessity for respondent No.1-Detaining
Authority, to pass an order of detention against the detenu.
The law is well settled that if any one of the grounds of detention, which
formed the basis for the Detaining Authority to pass the order of detention is
found to be irrelevant, then the whole of the order of detention is liable to be
set aside.  Since on issue No.1 we have held that the order of detention passed
by respondent No.1-Detaining Authority, as confirmed by respondent No.2-
Government, is vitiated due to his lack of subjective satisfaction, and is
liable to be set aside, we are not inclined to answer issue No.2.
Accordingly, the writ petition is allowed.  Consequently, the order of detention
dated 11.01.2012, passed by respondent No.1-Detaining Authority, as confirmed by
respondent No.2-Government by order dated 24.02.2012, is set aside.  The detenu
shall be released forthwith if he is not required in any other case.  No costs.

________________  
N.V. RAMANA, J.

____________________  
P. DURGA PRASAD, J.  
28-09-2012

Order 18, Rule 17 C.P.C.- It is true that the conduct of defendants 2 and 3 is not appreciable. When they suffered an order in I.A.No.4642 of 2006 seeking enlargement of time for filing written statement, they misrepresented to the Court below that they had obtained stay orders from the High Court. They made the said representation on 13-03-2007, when the stay was actually granted on 10-08-2007. In fact, the revision itself was filed on 31-07-2007 and the same was returned and re- submitted again only on 03-08-2007 and on such misrepresentation of fact, the matter was adjourned on a couple of occasions. These facts were in fact noticed by this Court in the C.R.P.No.3519 of 2007 and the request of the defendants 2 and 3 to extend the time for filing written statement was rejected. Thus, the defendants 2 and 3 were not allowed to file the written statement. In my view, the defendants are sufficiently punished and the same conduct should not come in their way at least for cross-examining the plaintiff.


THE HON'BLE SRI JUSTICE NOUSHAD ALI      

C.R.P.Nos.3404 of 2010 and Batch

21.09.2012

P.Bhaskara Rao

Mr.Wolfgang Ormeloh, Managing Director & CEO, Alumeco India Extrusion Limited,  
and another

Counsel for the Petitioner : Sri Y.Ratnakar

Counsel for the Respondents 1 and 2: Mrs.Sangeeta Bhaskar

<Gist:

>Head Note:

?Citations:NIL

C.R.P. Nos.3404, 3405 and 3406 of 2010

COMMON ORDER :    

1)      These Revision Petitions are connected arising out of the same suit
between the same parties and involve common facts and law. Hence the revision
petitions are disposed of by this common order.
2)      The petitioner herein is the plaintiff and respondents 1 and 2  herein are
defendant Nos.2 and 3 in O.S.No.354 of 2006 on the file of the III Additional
Chief Judge, City Civil Court, Hyderabad.  Defendant No.2 (respondent No.1
herein) is the Managing Director of defendant No.3 (respondent No.2 herein)
Company.  Respondent No.3 herein viz., P.Surya Prakash, Company Secretary, is  
defendant No.1 in the suit.
3)      For the sake of convenience, the parties herein are referred by their
status in the suit.
4)      The plaintiff filed the aforesaid suit bearing O.S.No.354 of 2006 claiming
from the defendants Rs.20,00,000/- as damages for defamation alleging that the
defendants made false allegations and claims against the plaintiff.  The
defendants 2 and 3 (Respondents 1 and 2) were set ex parte in the suit on 30-10-
2006 and defendant No.1 (Respondent No.3 herein) was set ex parte on 30-11-2006. 
5)      I.A.No.3913 of 2006 was filed by the defendants 2 and 3 under Order 9,
Rule 7 C.P.C. for setting aside the ex parte order.  The said I.A. was allowed
on 30-11-2006 on condition to pay costs of Rs.500/-.  Defendants 2 and 3 did not
comply with the conditional order, hence the I.A. for setting aside the ex parte
order was dismissed by order dated 22-12-2006. These defendants filed another
I.A.No.4642 of 2006 under Section 148 C.P.C., seeking extension of time for
filing written statement. The said I.A. was dismissed on 22.12.2006. A revision
petition C.R.P.No.3519 of 2007 preferred against the said order was dismissed by
this Court on 28.12.2007. In the meanwhile, consequent upon the dismissal of the
aforesaid I.As., the suit was posted for plaintiff's evidence on 17-01-2007.  On
17-01-2007, I.A.No.3913 of 2007 was closed for non-compliance of the conditional
order.  On the same day, the plaintiff filed his examination-in-chief and marked
Exs.A1 to A11 documents.  The case was adjourned on a couple of occasions on the
ground that the aforesaid C.R.P. was pending in the High Court  After it was
brought to the notice of the lower Court that the C.R.P. was not even
registered, the case was posted for judgment to 14-08-2007.  In the meanwhile,
stay was granted in the C.R.P. on 10-08-2007 and the matter was adjourned to 23-
11-2007.  Stay was vacated on
14-09-2007, hence the matter was again posted for judgment to
11-12-2007 on 29-11-2007.  When the matter was kept reserved for judgment,
defendants 2 and 3 filed the instant I.As. to reopen the case and permit them to
cross-examine P.W.1.  The said I.As., were allowed by the Court below by orders,
dated 10-12-2009, which are impugned in these C.R.Ps.
6)      Heard Sri.Y.Ratnakar, learned counsel for the petitioner and Smt. Sangeeta
Bhaskar, learned counsel for the Respondents 1 and 2 in the above C.R.Ps.
7)      Sri Y. Ratnakar, learned counsel for the petitioner would challenge the
orders on three grounds - (i) it is contended that the request of the defendants
2 and 3 to open the suit and to permit them to cross-examine the plaintiff filed
under Order 18, Rule 17 is not maintainable.  According to the counsel, under
the said provision, the Court alone is competent to recall a witness and put
questions to him in appropriate cases; therefore, according to the learned
counsel, the impugned orders permitting the defendants 2 and 3 for cross-
examining the plaintiff are without jurisdiction; (ii) the defendants 2 and 3
are not entitled for the discretionary relief. According to the learned counsel,
these defendants abused the process of law and mislead the trial Court by
falsely representing that the suit proceedings were stayed by the High Court,
therefore their conduct should disentitle them for indulgence even for their
participation in the suit; and (iii) in any event, the trial Court is not
justified in granting relief beyond the prayer of the defendants 2 and 3.
Learned counsel would state that the defendants merely wanted recall of PW.1 for
cross-examination, whereas the Court has permitted them to adduce evidence on
their behalf in addition to the said prayer.
8)      Smt. Sangeeta Bhaskar, the learned counsel for the respondents 1 and 2
herein/defendants 2 and 3 would however support the orders. She would contend
that though the defendants 2 and 3 are not permitted to file written statements,
they are entitled to participate in the suit at least from the left over stage.
She would further contend that the defendants should have fair opportunity to
meet the case of the plaintiff in view of the huge claim being made against
them.
9)      I have considered the aforesaid contentions and perused the material on
record.
10)     Order 18, Rule 17 C.P.C. enables the Court at any stage to recall any
witness who has been examined and put questions to him as it thinks fit.  This
power can be exercised by the Court
suo motu or on an application filed by any of the parties to the suit requesting
the Court to exercise the said power.  The power is discretionary and the same
should be used in appropriate cases to enable the Court to clarify any doubts in
regard to the evidence led by the parties. However, once a witness is recalled,
the Court may at its discretion permit the parties to assist it by putting
questions.  Thus, primarily it is the Court that is vested with the power to
recall a witness under the said provisions and it does not confer any right on
the parties.
11)     It is to be noted that there is no specific provision in the C.P.C. which
enables the parties to re-open the evidence for the purpose of further
examination of parties.  However, Section 151 C.P.C. provides that nothing in
the Code shall be deemed to limit or otherwise of it the inherent powers of the
Court to make such orders as may be necessary for the ends of justice or to
prevent the abuse of process of the Court.
12)     The inherent power under the said provision can be invoked in appropriate
cases to reopen the evidence and to recall a witness for further examination or
cross-examination.  The inherent power of the Court is not affected merely
because the power to recall a witness is specifically vested in the Court under
Order 18, Rule 17. At the same time, it must be noted that though Section 151
C.P.C. confers discretion on the Court, the power should be exercised sparingly
and only to meet the ends of justice.  On a consideration of the provision of
Order 18, Rule 17 and Section 151 C.P.C. it emerges that a witness can be
recalled by the Court to put questions to him to enable it to clarify as to the
evidence already recorded and at the same time it may permit the parties to put
questions to the witness.  Under Section 151 C.P.C. the Court can exercise wider
powers to recall a witness at the instance of a party and to permit to
examine/cross-examine the witnesses.
13)     In the instant case, there is no dispute that application was filed to
recall the plaintiff both under Order 18, Rule 17 and also under Section 151
C.P.C.  As noticed above, defendants 2 and 3 did not file their written
statement but that will not disentitle the defendants 2 and 3 to take part in
further proceedings and cross-examine the plaintiff or his witnesses in order to
demolish the plaintiff's case.  In the instant case, the Court has permitted to
recall of the plaintiff as it was satisfied that it was necessary to do so as
the plaintiff is seeking huge amount of Rs.20,00,000/- as damages and that it
would not cause any prejudice to both the parties.  Thus, I am of the considered
view that there is justification for the Court below in exercising its
discretion, be it under Order 18, Rule 17 or under Section 151 C.P.C.
14)     It is true that the conduct of defendants 2 and 3 is not appreciable.
When they suffered an order in I.A.No.4642 of 2006 seeking enlargement of time
for filing written statement, they misrepresented to the Court below that they
had obtained stay orders from the High Court.  They made the said representation
on 13-03-2007, when the stay was actually granted on 10-08-2007.  In fact, the
revision itself was filed on 31-07-2007 and the same was returned and re-
submitted again only on 03-08-2007 and on such misrepresentation of fact, the
matter was adjourned on a couple of occasions.  These facts were in fact noticed
by this Court in the C.R.P.No.3519 of 2007 and the request of the defendants 2
and 3 to extend the time for filing written statement was rejected.  Thus, the
defendants 2 and 3 were not allowed to file the written statement.  In my view,
the defendants are sufficiently punished and the same conduct should not come in
their way at least for cross-examining the plaintiff.
15)     The counsel for the petitioner is right in contending that relief which
has not been claimed by the defendants 2 and 3 themselves was granted by the
Court below.  The defendants merely wanted the recall of P.W.1 for cross-
examination, where as the Court below in addition to the said prayer has
permitted them to adduce evidence on their behalf.  The said relief is clearly
beyond the prayer of the defendants 2 and 3.  Civil Courts are not competent to
grant reliefs beyond what has been prayed for.  It is already noticed that the
defendants 2 and 3 have not filed the written statement and in the absence of
their own pleadings it is not permissible for them to lead their own evidence.
Though they are entitled to participate in further proceedings without the
written statement, their participation would be restricted by several
limitations.  They will be competent to cross-examine the plaintiff or his
witnesses only to demolish the case of the plaintiff.  Thus, the impugned order
to the extent it has permitted the defendants 2 and 3 to adduce their evidence
is not legal and unsustainable.
16)     For the foregoing reasons, the order insofar as recalling P.W.1 for cross-
examination by defendants 2 and 3 is confirmed; and the order insofar as
permitting the said defendants to adduce evidence is set aside.
17)     C.R.Ps. are accordingly allowed in part.  No costs.
18)     In view of the disposal of the C.R.Ps., C.M.P.Nos.4542, 4543 and 4544 of
2010 are dismissed as unnecessary.
________________  
NOUSHAD ALI, J.  
21st September, 2012.