Shri Umashanker Pandey Vs. Shri B.K. Uppal & 3 Ors.
EmailAppeal: S.L.P. No.5416 of 1990
Petitioner: Shri Umashanker Pandey
Respondent: Shri B.K. Uppal & 3 Ors.
Apeal: S.L.P. No.5416 of 1990
Judges: S.RATNAVEL PANDIAN & K.JAYACHANDRA REDDY, JJ.
Date of Judgment: Mar 06, 1991
Head Note:
PRACTICE AND PROCEDURE
Plea – Appeal against the Order of Single Judge dismissed in limine by Division Bench – Review petition raising new pleas also dismissed – Fresh grounds raised in review petition but not raised before the Division Bench of the High Court cannot be allowed to be raised before the Supreme Court.
Cases Reffered:
1. Nadella Satyanarayana v. Yamanoori Venkata Subbiah, AIR 1957 AP 172 = 1957 Andh LT 369. (Para 3)
JUDGEMENT:
S.RATNAVEL PANDIAN, J. :
1. This SLP is directed against the judgment and order dated 9th November 1989 of the High Court of Delhi in FAO(OS) 171/89 in limine dismissing the appeal preferred as against the order of a learned Single Judge dated 25.7.1989 sitting on the original side of the High Court. The petitioner/ plaintiff filed suit No. 128/83 for damages. The respondents herein were the defendants in the suit of whom the defendants 1 and 2 filed I.A. No.5253/89 seeking permission of the Court to inspect the property in dispute by the 1st defendant and his counsel and to take photographs, if necessary, of the said property for the cross-examination of the plaintiff. This plea of the defendants 1 and 2 was stoutly opposed by the petitioner/ plaintiff. The learned Single Judge passed an order dated 25.7.89 allowing I.A., the relevant portion of which reads thus:
“The only prayer is for inspection of the property by Advocate and for taking of photographs of the property by the Advocate and not by the professional photographer, which according to defendants, will facilitate the cross-examination of the plaintiff. I can see no possible prejudice to the plaintiff in case such a permission is granted to the defendants. Mr. Arun Mohan, learned counsel for defendant No.1 and 2 states that he will use the photographs, if permissible in law, only for the purpose of cross-examination of the plaintiff and will not lead any defence evidence to prove such photographs. He further submits that he will not examine any witness on the basis of the inspection which may be permitted to the counsel. In view of the above, I can see no objection to the prayer being allowed.
Accordingly, I allow the Advocates of the defendants No.1 and 2 namely, Mr. Arun Mohan and Mr. B.P. Aggarwal to inspect the property. Learned Advocates may take photographs of such portions of the building as they may think proper on the site. The inspection will be carried out on the date and time jointly agreed to by the learned counsel.
2. This order was challenged before a Division Bench of the High Court which passed the impugned order in limine on 9.11.1989 reading “Dismissed”. Hence this SLP.
3. The learned counsel appearing on behalf of the petitioner challenged the impugned order on several grounds – firstly, a Senior Advocate could not be permitted to visit the spot and take the photographs of the site, in support of which argument he drew our attention to Chapter I of Part-VI of the Bar Council of India Rules under the caption “Restrictions of Senior Advocates”. Secondly, the production of the photographs sought to be taken by the advocate would embarrass the court hearing the matter and prejudice the petitioner/ plaintiff. Thirdly, as the respondent/ defendants have not produced at or before the settlement of issues the documentary evidence which they now seek to produce, they should not be permitted to file those documents and the impugned order passed by the learned Single Judge as confirmed by the Division Bench is in violation of Rule 2(1) of Order XIII. Fourthly, the document which the respondent seek to produce are not in existence but they have to be created on the permission of the Court. Fifthly, relying on the decision of the Full Bench of the Andhra Pradesh High Court in Nadella Satyanarayana v. Yamanoori Venkata Subbiah (AIR 1957 A.P. 172), it has been contended that the counsel cannot create and present a document on behalf of his client unless he is authorised in this behalf.
4. Mr. Parekh, the learned counsel appearing on behalf of the defendants vehemently opposes the above plea on the following grounds, namely,
1. As the order impugned is an interlocutory order, this Court does not, as a matter of rule, interfere with such order, save under very exceptional circumstances.
2. Secondly, the gounds now newly urged were not raised by the petitioner/ plaintiff either before the learned Single Judge or in the Memorandum of Appeal or before the Division Bench.
3. Thirdly, though these new grounds have been raised in the Review Application (R.A. 47/89) which application was dismissed by an order of the Division Bench on 15.12.89, that order is not challenged in this Special Leave Petition and as such that order of review rejecting the grounds now urged have reached the finality as not being challenged.
4. Fourthly, that Rule 2(2) of Order XIII is an exception to the applicability of Rule 2(1) of the said order to documents to be produced for the cross-examination of the witnesses of the other parties.
5. We may straightaway state that the first submission of the learned counsel urged on behalf of the petitioner need not be gone into as the first respondent in his counter affidavit has stated on oath “that the senior counsel (Shri Arun Mohan) is not interested in inspecting/ photographing the property.” As this SLP, in our opinion, is liable to be dismissed on some other ground which we will be presently dealing with, we feel that it is not necessary to examine the various respective contentions raised by the learned counsel appearing for the petitioner and the respondent.
6. Admittedly, the fresh grounds now urged before us have not been advanced before the learned Single Judge or averred in the Memorandum of Appeal filed before the High Court or raised before the Division Bench. Hence the petitioner cannot be permitted to advance these new contentions which he has not raised before the High Court except in his Review Application.
7. As rightly submitted by Mr. Parekh, this present Special Petition is directed only against the order dated 9th November, 1989 made in FAO(S) 171/89. The order dismissing the Review Application in which these new grounds have been raised is not challenged before us. It is pertinent to note that in the preamble of the SLP as well as in para 10 and in the prayer portion of the SLP, it is specifically mentioned that only the order dated 9.11.89 is questioned. Even in the ‘list of dates’, it is mentioned that the order impugned is the one passed on 9.11.1989. Thus it is unequivocally and unmistakably clear that the petitioner is not questioning only the legality of the order of the Division Bench dated 9.11.1989 but not order passed in the Review Application dated 15.12.1989. Therefore, when the Review Order is not under challenge, the impugned order of the Division Bench dated 9.11.1989 confirming the order of the learned Single Judge cannot be successfully assailed by raising fresh grounds which grounds admittedly have not been urged before the High Court. At this stage, the learned counsel for the petitioner drawing Rule 7 of the Order XLVII to our attention contends that as the review Application has been rejected, no appeal would lie. We think that it is not necessary for us to exhaustively deal with this submission since we are disposing of this case on different ground as mentioned above.
8. For all the reasons stated above, we hold that the petitioner would not be justified in assailing the impugned order on entirely fresh grounds which he has not raised before the High Court except in the review petition, the order of which is not challenged.
9. In the result this Special Leave Petition is dismissed with costs. The interim stay granted by this Court on 30.10.1990 is vacated.
1. This SLP is directed against the judgment and order dated 9th November 1989 of the High Court of Delhi in FAO(OS) 171/89 in limine dismissing the appeal preferred as against the order of a learned Single Judge dated 25.7.1989 sitting on the original side of the High Court. The petitioner/ plaintiff filed suit No. 128/83 for damages. The respondents herein were the defendants in the suit of whom the defendants 1 and 2 filed I.A. No.5253/89 seeking permission of the Court to inspect the property in dispute by the 1st defendant and his counsel and to take photographs, if necessary, of the said property for the cross-examination of the plaintiff. This plea of the defendants 1 and 2 was stoutly opposed by the petitioner/ plaintiff. The learned Single Judge passed an order dated 25.7.89 allowing I.A., the relevant portion of which reads thus:
“The only prayer is for inspection of the property by Advocate and for taking of photographs of the property by the Advocate and not by the professional photographer, which according to defendants, will facilitate the cross-examination of the plaintiff. I can see no possible prejudice to the plaintiff in case such a permission is granted to the defendants. Mr. Arun Mohan, learned counsel for defendant No.1 and 2 states that he will use the photographs, if permissible in law, only for the purpose of cross-examination of the plaintiff and will not lead any defence evidence to prove such photographs. He further submits that he will not examine any witness on the basis of the inspection which may be permitted to the counsel. In view of the above, I can see no objection to the prayer being allowed.
Accordingly, I allow the Advocates of the defendants No.1 and 2 namely, Mr. Arun Mohan and Mr. B.P. Aggarwal to inspect the property. Learned Advocates may take photographs of such portions of the building as they may think proper on the site. The inspection will be carried out on the date and time jointly agreed to by the learned counsel.
2. This order was challenged before a Division Bench of the High Court which passed the impugned order in limine on 9.11.1989 reading “Dismissed”. Hence this SLP.
3. The learned counsel appearing on behalf of the petitioner challenged the impugned order on several grounds – firstly, a Senior Advocate could not be permitted to visit the spot and take the photographs of the site, in support of which argument he drew our attention to Chapter I of Part-VI of the Bar Council of India Rules under the caption “Restrictions of Senior Advocates”. Secondly, the production of the photographs sought to be taken by the advocate would embarrass the court hearing the matter and prejudice the petitioner/ plaintiff. Thirdly, as the respondent/ defendants have not produced at or before the settlement of issues the documentary evidence which they now seek to produce, they should not be permitted to file those documents and the impugned order passed by the learned Single Judge as confirmed by the Division Bench is in violation of Rule 2(1) of Order XIII. Fourthly, the document which the respondent seek to produce are not in existence but they have to be created on the permission of the Court. Fifthly, relying on the decision of the Full Bench of the Andhra Pradesh High Court in Nadella Satyanarayana v. Yamanoori Venkata Subbiah (AIR 1957 A.P. 172), it has been contended that the counsel cannot create and present a document on behalf of his client unless he is authorised in this behalf.
4. Mr. Parekh, the learned counsel appearing on behalf of the defendants vehemently opposes the above plea on the following grounds, namely,
1. As the order impugned is an interlocutory order, this Court does not, as a matter of rule, interfere with such order, save under very exceptional circumstances.
2. Secondly, the gounds now newly urged were not raised by the petitioner/ plaintiff either before the learned Single Judge or in the Memorandum of Appeal or before the Division Bench.
3. Thirdly, though these new grounds have been raised in the Review Application (R.A. 47/89) which application was dismissed by an order of the Division Bench on 15.12.89, that order is not challenged in this Special Leave Petition and as such that order of review rejecting the grounds now urged have reached the finality as not being challenged.
4. Fourthly, that Rule 2(2) of Order XIII is an exception to the applicability of Rule 2(1) of the said order to documents to be produced for the cross-examination of the witnesses of the other parties.
5. We may straightaway state that the first submission of the learned counsel urged on behalf of the petitioner need not be gone into as the first respondent in his counter affidavit has stated on oath “that the senior counsel (Shri Arun Mohan) is not interested in inspecting/ photographing the property.” As this SLP, in our opinion, is liable to be dismissed on some other ground which we will be presently dealing with, we feel that it is not necessary to examine the various respective contentions raised by the learned counsel appearing for the petitioner and the respondent.
6. Admittedly, the fresh grounds now urged before us have not been advanced before the learned Single Judge or averred in the Memorandum of Appeal filed before the High Court or raised before the Division Bench. Hence the petitioner cannot be permitted to advance these new contentions which he has not raised before the High Court except in his Review Application.
7. As rightly submitted by Mr. Parekh, this present Special Petition is directed only against the order dated 9th November, 1989 made in FAO(S) 171/89. The order dismissing the Review Application in which these new grounds have been raised is not challenged before us. It is pertinent to note that in the preamble of the SLP as well as in para 10 and in the prayer portion of the SLP, it is specifically mentioned that only the order dated 9.11.89 is questioned. Even in the ‘list of dates’, it is mentioned that the order impugned is the one passed on 9.11.1989. Thus it is unequivocally and unmistakably clear that the petitioner is not questioning only the legality of the order of the Division Bench dated 9.11.1989 but not order passed in the Review Application dated 15.12.1989. Therefore, when the Review Order is not under challenge, the impugned order of the Division Bench dated 9.11.1989 confirming the order of the learned Single Judge cannot be successfully assailed by raising fresh grounds which grounds admittedly have not been urged before the High Court. At this stage, the learned counsel for the petitioner drawing Rule 7 of the Order XLVII to our attention contends that as the review Application has been rejected, no appeal would lie. We think that it is not necessary for us to exhaustively deal with this submission since we are disposing of this case on different ground as mentioned above.
8. For all the reasons stated above, we hold that the petitioner would not be justified in assailing the impugned order on entirely fresh grounds which he has not raised before the High Court except in the review petition, the order of which is not challenged.
9. In the result this Special Leave Petition is dismissed with costs. The interim stay granted by this Court on 30.10.1990 is vacated.
