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CASE NO.: Appeal (civil)  2917 of 2007

PETITIONER: KISHOR KIRTILAL MEHTA & ORS

RESPONDENT: LILAVATI KIRTILAL MEHTA MEDICAL TRUST & ORS

DATE OF JUDGMENT: 09/07/2007

BENCH: TARUN CHATTERJEE & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.  2917  OF 2007 (Arising out of SLP(C) No.10954 of 2007) With  C.A. No.  2918 of 2007  (@ S.L.P. [C] No. 11202/2007 CC No.5818 of 2007)  and  C.A. No.  2918 of 2007  (@ S.L.P. [C] No. 11203/2007 CC No.5819 of 2007)]

P.K. BALASUBRAMANYAN, J.

                1.              Leave granted.

2.              When the Petitions for Special Leave to Appeal  challenging the orders of the High Court came up for  admission, the contesting respondents appeared to oppose  them.  So, with the consent of parties and taking note of  the limited issue that is before this Court, we are  disposing of these matters finally here and now.  

3.              The suit out of which these appeals arise is one  filed by Mrs. Charu Kishor Mehta, the appellant, in the  two appeals arising out of Petitions for Special Leave to  Appeal - CC Nos. 5818 and 5819 of 2007.  The dispute  relates to the administration of a trust named Lilavati  Kirtilal Mehta Medical Trust governed by The Bombay  Public Trust Act, 1950.  The suit challenged a notice dated  27.4.2006 issued for convening a meeting of the trustees  on 29.4.2006 to resolve certain disputes and sought a  declaration that the resolution allegedly adopted by that  meeting was illegal and void and other incidental reliefs.   By an order of this Court dated 26.3.2007 in Civil Appeal  No. 1575 of 2007, the suit was directed to be taken up  and disposed of as expeditiously as possible and at least  within a period of six months from that date.  An interim  arrangement was also made by that order.  It is the  common case that pursuant to the direction of this Court,  the trial has commenced, the plaintiff examined in part,  and her examination remains incomplete, to be continued  later.  As of now, a witness for the plaintiff is being  examined. It is also submitted that as per the direction of  this Court, the suit has to be disposed of before  26.9.2007.

4.              Defendant No. 11 in the suit is the husband of  the plaintiff and defendants 12 and 13 are their children.  

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They were impleaded by way of an amendment of the  plaint.  Defendant No. 11 filed a written statement  supporting the case of the plaintiff.  Defendants 12 and 13  filed a joint written statement.  They also essentially  supported the plaintiff.  According to the contesting  defendants, the written statements filed, sought to  introduce averments not germane to the plaint and  seeking to widen the scope of the controversy.  They  therefore filed an application seeking to have such  pleadings in the two written statements struck out.   Defendants 11 to 13 opposed that prayer.  The trial court  passed an order dated 30.4.2007 striking out paragraphs  4 to 31, 35 and 36 of the written statement of defendant  No. 11 and paragraphs 4, 7, 11 and 12 from the joint  written statement of defendants 12 and 13.  Feeling  aggrieved, defendants 11 to 13 filed W.P. No. 4407 of 2007  before the High Court purporting to invoke Article 227 of  the Constitution of India, challenging the said order.   While the High Court issued notice on the Writ Petition  returnable by 20.7.2007, it refused to stay the suit or the  operation of the order dated 30.4.2007.  It is this refusal  to grant an interim order of stay that is impugned in SLP  (C) No. 10954 of 2007.

5.              Meanwhile, the plaintiff filed an affidavit in lieu  of her chief-examination in terms of Order XVIII Rule 4 of  the Code.  The contesting defendants filed an application  for striking out that part of the evidence in the affidavit,  which, according to them, travelled outside the pleadings  in the plaint.  The plaintiff filed an objection to that  application.  By order dated 13.6.2007, the trial court  accepted the plea of the contesting defendants and struck  out paragraphs 11, 21 to 25, 27 and 29 in the affidavit of  examination-in-chief filed by the plaintiff.  Feeling  aggrieved by that order, the plaintiff filed W.P. No. 4698 of  2007 invoking Article 227 of the Constitution of India,  challenging the order of the trial court.  Though the High  Court admitted the Writ Petition and issued notice  returnable on 20.7.2007, it declined to grant a stay of trial  of the suit or of the operation of the order dated  13.6.2007. Feeling aggrieved by the refusal of the High  Court to grant an interim order pending disposal of the  Writ Petition, the plaintiff has come up to this Court by  way of Petition for Special Leave to Appeal arising out of  CC No. 5818 of 2007.     

6.              The plaintiff, confronted with the order dated  13.6.2007 striking out a portion of her affidavit evidence  in chief-examination, moved an application for  amendment of the plaint.  By the proposed amendment,  she sought to add paragraphs 3(a), 3(b) as also  paragraphs 7(a)(i) and 7(a)(ii) to the plaint.  The contesting  defendants opposed that application on various grounds.   The trial court, by order dated 16.6.2007, dismissed the  application.  Challenging the said order, the plaintiff filed  W.P. No. 4697 of 2007 in the High Court under Article 227  of the Constitution of India.  The High Court while  admitting the said Writ Petition and issuing notice  returnable by 20.7.2007, declined to stay the suit or the  operation of the order dated 16.6.2007.  This declining to  grant stay is challenged in the Petition for Special Leave to  Appeal arising out of CC No. 5819 of 2007.  

7.              Learned counsel for the plaintiff and defendants  11 to 13, the appellants before us, submitted that having

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admitted the challenge to the orders of the trial court, the  High Court was not justified in refusing to stay the  operation of the respective orders.  Counsel specifically  submitted that they were not seeking a stay of the trial of  the suit but were only seeking a stay of the operation of  the orders refusing the amendment of the plaint, striking  out portions of written statements of defendants 11, 12  and 13 and a part of the chief-examination of the plaintiff  covered by the affidavit.  Counsel submitted that if  ultimately the petitions under Article 227 of the  Constitution of India filed by the plaintiff and defendants  11 to 13 challenging the orders of the trial court are to be  allowed, then during the examination of the witnesses, all  those aspects covered by the amendment and the  untruncated written statement and that covered by the  chief-examination affidavit, would have to be elicited in  the examination of the witnesses, and if meanwhile the  evidence is concluded, this will result in considerable  confusion and the evidence will have to be reopened,  witnesses recalled and these matters covered all over  again.  Counsel therefore submitted that the operation of  the relevant orders may be stayed pending disposal of the  writ petitions by the High Court.  This would cause no  prejudice to anyone.

8.              Learned Senior Counsel appearing for the  contesting respondents submitted that the High Court was  in error in admitting the petitions under Article 227 of the  Constitution of India since the amendment brought to  Section 115 of the Code was not intended to be one  opening the floodgates to enable every order to be  challenged under Article 227 of the Constitution of India.   Article 227 of the Constitution of India was concerned  with correcting errors of jurisdiction and the High Court  ought not to have entertained the writ petitions filed by  the plaintiff and defendants 11 to 13.  The plaintiff and  defendants 11 to 13, if so advised, had an opportunity to  challenge these orders in terms of Section 105(1) of the  Code, in any appeal against the decree that they may be  forced to file.  Counsel pointed out that in view of the  proviso to Order VI Rule 17 of the Code introduced in the  year 2002, the amendment of the plaint sought for could  not be granted in this case, since the evidence had already  commenced when the application was made and there was  no extraordinary circumstance justifying the allowing of  the amendment.  Similarly, the orders striking out  portions of the written statements and the affidavit in  chief-examination, also could not be interfered with.  It is  not for us to consider these arguments at this stage and it  is for the contesting defendants to raise these contentions  before the High Court wherein the orders of the trial court  are under challenge.  The High Court which is  entertaining the challenge to the orders of the trial court,  we are sure, would consider those contentions as well  while it takes up the writ petitions for final disposal.   

9.              Learned counsel for the contesting respondents  further submitted that an order of stay of the operation of  the orders impugned before the High Court would result in  impediment to the trial of the suit and such an order  cannot be passed in the light of the specific directions  earlier issued by this Court. Counsel further submitted  that the High Court had the jurisdiction either to grant an  interim stay pending an adjudication or not to grant it and  it is not for this Court exercising jurisdiction under Article

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136 of the Constitution of India to entertain such Petitions  for Special Leave to Appeal and to pass orders interfering  with the orders of the High Court.  Counsel submitted that  if any stay is granted by this Court that would lead to an  argument that the Supreme Court had found merit in the  challenge of the plaintiff and defendants 11 to 13, to the  orders of the trial court and that would send a wrong  signal.  Counsel submitted that on the facts and in the  circumstances of the case, there was no reason to  interfere with the orders of the High Court refusing to  grant a stay of operation of the orders passed by the trial  court.   

10.             It is true that it is not for this Court to interfere  with each and every interim order passed by the High  Court.  But, there may be occasions when this Court is  called upon to step in, in its corrective jurisdiction.  But  that, of course, will depend upon the facts and  circumstances of a particular case and they may be rare.   While therefore we agree with the submission of learned  Senior Counsel for the respondents that normally this  Court should not interfere with the refusal to grant a stay  by the High Court in a particular proceeding, we cannot  assume the position that this Court will never do so  whatever be the circumstances.  Whether an appropriate  circumstance exists in this case, is another matter.   

11.             As far as the submission that an interim order of  stay, if it were to be granted by this Court, would influence  the High Court or lead it into thinking that there is merit  in the petitions filed before it by the plaintiff and  defendants 11 to 13, the same does not give enough credit  to the judicial approach a High Court has to make or to  the experience and familiarity of the concerned judge with  the procedure.  After all, merely because this Court passes  an order of stay in the circumstances of a case deviating  from what the High Court has done, it cannot be expected  that the High Court will suddenly find merit in the matter  pending before it and it will be guided by the interim order  passed by this Court.  We are confident that any High  Court or any judge trained in law will have no difficulty in  understanding the scope of the order passed by this Court  and in understanding that what it or he is called upon to  do, is                                                                                                                                                                   to decide the matter on merits uninfluenced by the fact  that an interim order of stay has been granted by this  Court or merely by the reasons if any, stated by this Court  in an interlocutory order in a matter that has come up  before it at an interlocutory stage.  We therefore see no  merit in the apprehension of learned Senior Counsel for  the contesting respondents that a grant of stay by us  would send a wrong signal to the High Court.  We have no  doubt that the High Court will consider the arguments of  both sides on merits uninfluenced by anything we have  done here and come to its own independent conclusion on  merits.  

12.             Now coming to the question, whether we should  interfere and grant an interim order of stay of operation of  the orders refusing the amendment of the plaint, striking  out portions of the written statement of defendants 11, 12  and 13 and striking out portions of the chief-examination  of the plaintiff from the affidavit tendered in that behalf,  we see no reason to stay the operation of the order

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refusing the amendment of the plaint.  Such order of stay  would be meaningless since as of now there is no  amendment of the plaint and an amendment would come  into existence only if the High Court finds it a case where  interference is called for in the light of the relevant  arguments that may be raised before it.  But, we think  that the stay of operation of the orders striking out  portions of the written statements of defendant No. 11 and  of defendants 12 and 13 and part of the chief-examination  in the affidavit tendered by the plaintiff would be justified  since in case the High Court were to accept the challenge  to those orders of the trial court, it would mean that the  witnesses will have to be recalled and questions put to  them on those aspects now struck  out to cover those  aspects and this would inconvenience the trial.  The  consequence of granting a stay would only be that some  irrelevant aspects are also covered in the examination of  the witnesses.  If the High Court were to dismiss the writ  petitions, those portions can always be eschewed.  By and  large, which part of the evidence is to be discarded as  being outside the pleadings is something that the court  considers when it discuses the evidence.  There cannot  also be any doubt that no amount of evidence can be  looked into on a plea never put forward.  (See Siddik  Mahomed Shah vs. Mt. Saran and others (AIR 1930 P.C.  57).  Therefore, at this stage, if the operation of those two  orders are not stayed, it would mean that the examination  of the witnesses will cover only that portion of the plea  admitted to be put forward by defendants 11 to 13 or in  the plaint, and that would cause inconvenience to the trial  which has been directed to be expedited by this Court.   Merely because some more or not strictly necessary  questions are also asked either in cross-examination or in  chief-examination, that cannot also prejudice the  contesting defendants since they can always plead either  that a part of the evidence has to be discarded as not  being covered by the pleadings in the case or that it is  irrelevant. We do not think that it is necessary at this  stage to shut out any evidence.  We clarify that what part  of the pleadings and what part of the evidence have to be  discarded, will have to be considered by the court in the  light of the order that may be passed by the High Court  and if that part of the evidence is covered by the pleadings  that are directed to be struck out then, obviously, that  part of the evidence will have to be ignored.  So will be the  fate of the evidence that might be tendered which is not  covered by the pleadings in the plaint.  Obviously, the  question whether defendants 11, 12 and 13 can enlarge  the scope of the suit will also have to be considered both  by the High Court while dealing with the issue and by the  trial court when it deals with the suit finally.  Suffice it to  say that in order only to ensure that there is no possibility  of a truncated trial, we stay the operation of the orders  striking out portions of the written statement of  defendants 11, 12 and 13 and portions of the affidavit  tendered in chief-examination by the plaintiff.  We make it  clear that what part of the written statement of defendant  No. 11 and of defendants 12 and 13and what part of the  evidence are to be ignored, are matters that will depend  upon the decision to be rendered by the High Court in the  matters pending before it and to be considered by the trial  court when it finally disposes of the suit and if its order  were to be upheld by the High Court, to be consistent with  the order it has already passed.

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13.             At the same time, we think it necessary to clarify  that the trial of the suit will go on and there will be no  impediment to it.  We find that the High Court has posted  the matter on 20.7.2007 and all parties agreed before us  that they will be ready to argue the matter that day.  We  request the High Court to ensure that the writ petitions  covering such simple issues, be taken up on 20.7.2007  itself and disposed of in accordance with law immediately.   

14.             The orders of the High Court are thus slightly  modified and the appeals are disposed of with the above  direction.  The parties are directed to suffer their  respective costs.