Case Note & Summary
The dispute arose from a commercial summary suit (Commercial O.S. No. 1/2018) filed by a Class-I contractor before the Commercial Court at Raichur against Krishna Bhagya Jala Nigam Ltd. (a Government of Karnataka undertaking) and its officers, seeking recovery of over Rs. 57.48 crores with interest under a works contract. The plaintiff examined his power-of-attorney holder, an employee of a related construction company, as PW1. After the defendants led their evidence and cross-examination was complete, the matter was posted for reply arguments. At that juncture, the plaintiff filed an application under Section 151 of the Code of Civil Procedure, 1908 (CPC) to file an affidavit in lieu of his own evidence. The application was prompted by the fact that during cross-examination of PW1, the defendants had raised an objection that the power-of-attorney did not authorize the holder to depose on behalf of the plaintiff. Citing the Supreme Court’s decision in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. as well as the need to avoid being non-suited on technical grounds, the plaintiff sought permission to lead evidence himself. The trial court allowed the application, finding sufficient cause. The defendants challenged this order by way of a writ petition under Articles 226 and 227 of the Constitution, contending that (i) the Commercial Court could not have invoked Section 151 CPC in view of the strict time-bound procedure under Order 18 Rule 4(1A) CPC as amended by the Commercial Courts Act, 2015, (ii) the application was not maintainable under Section 151, and (iii) the permission was being used to fill gaps in evidence and nullify admissions made by PW1. The plaintiff-respondent countered that the bar under Rule 4(1A) is not absolute and is qualified by Rule 4(1B), which permits additional evidence on sufficient cause; that the application was in the nature of one under Rule 4(1B); and that the plaintiff, being the best person to depose, was merely stepping in after the authorization of his attorney was questioned. The respondent also raised a preliminary objection regarding maintainability, arguing that Section 8 of the Commercial Courts Act barred revision and, by implication, the writ petition against an interlocutory order. The High Court, after hearing both sides, analyzed the scope of Article 227 in light of Surya Dev Rai and held that the constitutional supervisory jurisdiction survived the bar in Section 8, particularly where a patent error or jurisdictional overreach is alleged. On merits, the court found that the trial judge had exercised discretion under Order 18 Rule 4(1B) CPC read with Section 151, that sufficient cause was shown (the challenge to PW1’s authority), and that no perversity or gross error vitiated the order. Consequently, the writ petition was dismissed, and the trial court’s order allowing the plaintiff to file his evidence affidavit was upheld. The decision reinforces that procedural rigors in commercial suits must be read harmoniously with inherent powers and the fundamental need to do complete justice.
Headnote
A) Constitutional Law – Writ Jurisdiction – Article 227 of the Constitution of India – Interlocutory Order in Commercial Suit – Section 8 of the Commercial Courts Act, 2015 – The bar on revision under Section 8 of the CCA does not extinguish the High Court’s supervisory jurisdiction under Article 227, which remains available to correct patent errors or jurisdictional excess causing grave injustice, as laid down in Surya Dev Rai v. Ram Chander Rai, 2003 AIR SCW 3872 (Paras 5.6-5.7). B) Civil Procedure – Evidence – Order 18 Rules 4(1A) and 4(1B) of the Code of Civil Procedure, 1908 – Embargo on Filing Affidavits After Designated Time – The prohibition under Rule 4(1A) is not absolute; Rule 4(1B) empowers the court to permit a party to file additional affidavits of evidence upon showing sufficient cause in a written application, even after the trial has progressed to the arguments stage (Paras 4.1-4.2, 5.4-5.5). C) Civil Procedure – Inherent Powers – Section 151 of the Code of Civil Procedure, 1908 – Applicability in Commercial Suits – An application under Section 151, read with Order 18 Rule 4(1B) CPC, is maintainable to secure ends of justice or to prevent abuse of process, and the Commercial Court can exercise such power to permit the plaintiff to lead evidence where the earlier evidence of the power-of-attorney holder was subsequently challenged on the ground of lack of authority (Paras 4.3, 5.3). D) Evidence – Power of Attorney Holder – Deposition by Agent – In the light of Janki Vashdeo Bhojwani v. Indusind Bank Ltd., 2005 (2) SCC 217, when the defendant during cross-examination raises the issue that the power-of-attorney holder was not authorized to depose, the plaintiff may be permitted by the court to step into the witness box and lead evidence himself, such permission being a measure of abundant caution rather than an attempt to fill lacunae (Paras 5.2-5.3).
Issue of Consideration
Whether the High Court can exercise jurisdiction under Article 227 of the Constitution against an interlocutory order passed in a commercial suit given the bar under Section 8 of the Commercial Courts Act, 2015; Whether the trial court’s order permitting the plaintiff to lead evidence at the stage of arguments violated Order 18 Rule 4(1A) of CPC as amended by the Commercial Courts Act, 2015; Whether the application under Section 151 CPC for filing additional affidavit of evidence was maintainable
Final Decision
The High Court dismissed the writ petition, holding that the trial court’s order did not suffer from any perversity, patent error of law, or jurisdictional excess warranting interference under Article 227. The order was within the scope of Order 18 Rule 4(1B) CPC read with Section 151, and sufficient cause was shown by the plaintiff. The petition was dismissed, and the order permitting the plaintiff to lead evidence was upheld.
Law Points
- Order 18 Rule 4(1A) CPC embargo is not absolute and is qualified by Order 18 Rule 4(1B) permitting additional evidence on sufficient cause
- Section 151 CPC can be invoked even in commercial suits to meet ends of justice
- Section 8 of Commercial Courts Act
- 2015 does not bar constitutional remedies under Articles 226 and 227 for correcting patent errors or jurisdictional perversity
- a plaintiff can be permitted to lead evidence himself when the authorization of his power-of-attorney holder to depose is challenged during cross-examination
