1. The petitioners predecessor-in-interest, Radhika Murmu, was one of several defendants in Title Suit No.89/2007, pending on the file of the learned Civil Judge (Junior Division), 3rd Court, Asansol, Burdwan, instituted by the opposite party nos. 1 and 2. It is a suit for declaration of title and permanent injunction, alternatively for partition of disputed land by metes and bounds.
2. On the death of Radhika Murmu, the petitioners have been substituted in his place and stead. In course of progress of the suit, the defendants/petitioners filed five copies of photographs for exhibiting the same as secondary evidence. For the purpose of identification, the photographs were marked X to X-4. The photographer, Mr. Anil Kumar Das, was witness no.4 for the defendants/petitioners. He had deposed on September 2, 2008 to the effect that the negatives of the photographs (X to X-4) are not in existence, having been destroyed by burning after preservation for one year.
3. A petition was filed on behalf of the defendants/petitioners on September 2, 2008 itself whereby they intended to exhibit the photographs. The petition was considered by the trial Court. On perusal of the deposition of DW4 (Anil Kumar Das), the trial Court noticed that the defendants/petitioners intend to exhibit photographs of which the negatives had been destroyed and, therefore, there was no scope of comparing the same with the negatives. Relying on illustration a of Section 63 of the Evidence Act, 1872, a finding was returned that at this stage there is no materials before this Court to believe that the thing photograph was the original. The Photographer failed to identify the lands relating to which he look (sic took) such photographs to (sic so), there is no materials before this Court regarding the indentifies (sic identities) of the land in respect of which such photographs had been taken. Having found no reasonable ground to exhibit the photographs which had been marked X to X-4 for identification at the time of examination-in-chief of DW4, it was ordered (vide order no.313 dated 19.11.2009) that the petition filed on behalf of the defendants for marking the photographs as exhibits stands rejected without costs. It was also ordered that January 12, 2010 be fixed for further examination-in-chief of DW4.
4. The suit proceeded thereafter since the order dated November 19, 2009 was not subjected to challenge by the petitioners.
5. By a further petition dated May 5, 2010, the petitioners again prayed for marking the photographs i.e. X to X-4 as exhibits in the suit for ends of justice.
6. The said petition was considered by the trial Court on January 19, 2011. By order no. 324 passed on that date, the trial Court rejected the petition and declined to mark the photographs as exhibits in the suit in favour of the defendants. The trial Court duly took into consideration the fact that a similar petition was filed on September 2, 2008 which was rejected on November 19, 2009 on the ground that the negatives were not available.
7. The orders dated November 19, 2009 and January 19, 2011 are challenged in this application under Article 227 of the Constitution dated March 4, 2011.
8. At the outset, I called upon Mr. Sahoo, learned advocate for the defendants/petitioners to satisfy me regarding maintainability of the present application against the impugned orders.
9. While replying to the query of Court, Mr. Sahoo placed reliance on the decisions reported in 1980 (2) CLJ 225 (Gajanand Chimanlal vs. Indian Oil Corporation Ltd.), (1990) 1 SCC 513 (Chinnammal & ors. vs. P. Arumugham & anr.), AIR 1983 SC 876 [Kalipada Das & ors. vs. Bimal Krishna Sengupta (dead) by LRs], AIR 1955 SC 425 (Sangram Singh vs. Election tribunal, Kotah) and AIR 2003 SC 3044 (Suryadev Rai vs. Ram Chander Rai).
10. In Gajanand (supra), two orders were under challenge in the revision application. By the first order, prayer for correcting certain errors in the decree under Section 152 read with Section 153 of the Code of Civil Procedure was refused. By the second order, similar prayer made on an application under Section 151 of the Code was refused. In paragraph 9 of the decision it was observed that the revision application challenging the first order was barred by limitation, yet, the Court proceeded to consider the revision application on merits since the plaintiff/decree-holder was bonafide proceeding with a fresh application under Section 151 of the Code. The Court also noticed that the power under Section 152 of the Code read with Section 153 thereof was not exercised by the trial Court while hearing the first application since it was not a case of accidental slip or omission and thereby did not come within the purview of the said two provisions of the Code. The rejection of the prayer led the plaintiff/decree-holder to apply under Section 151 of the Code since his case in substance was that the decree and the judgment were not consistent. In such circumstances, the Court observed that the application under Section 151 of the Code cannot be held to be misconceived and on the contrary the relief which the plaintiff/decree-holder claimed was really admissible on an application under Section 151, and that he had approached the Court within time from the date of refusal to pass order as prayed for on the second application. For such reasons, the preliminary objection regarding maintainability was overruled.
11. The decision in Gajanand (supra) is squarely distinguishable. The first application filed by the plaintiff/decree-holder was rejected on the ground that it was not a case of accidental slip or omission in the decree covered by Section 152 of the Code read with Section 153 thereof. However, the second application under Section 151 was found to be neither misconceived nor irrelevant so as not to allow the plaintiff/decree-holder to have the time spent while proceeding with the first application to be deducted in the matter of calculating the period of limitation.
12. Here, the petitioners made a prayer before the trial Court for marking photographs X to X-4 as exhibits by filing a petition dated September 2, 2008. That petition was rejected on merits on the ground that due to non-availability of the negatives, the photographs could not have been treated as secondary evidence. The defendants/petitioners did not question such order dated November 19, 2009 and the same attained finality. The same prayer was renewed by them by filing the subsequent petition dated May 5, 2010, which has been rejected by the trial Court on January 19, 2011 placing reliance on the earlier order dated November 19, 2009.
13. It is settled law that once an order attains finality, it is of little consequence that the order in the circumstances and in its present form ought not to have been passed or may have even been erroneously passed. The law provides the framework within which a party aggrieved by an order, for whatever reason or ground, may seek his remedy. Unless the remedy is pursued, the Court that passed the order may not be urged, except by an application for review or except where it is demonstrated that the order has been procured by practicing fraud or that the Court had absolutely no inherent jurisdiction to pass the same, to reopen an issue that has already been decided. In this connection, I may refer to a Bench decision of this Court reported in 2009 (1) CHN 27 (Indu Bhushan Jana vs. Union of India & ors.). Paragraphs 11 and 12 of the said decision are relevant and are reproduced below :
11. Upon an order attaining finality, it matters little as to whether it is erroneous. A party aggrieved by an order has to work out his remedies within the legal framework. If an issue or the entire lis is concluded upon a finding being rendered and such finding remains unchallenged, it is no longer open to the party to undo the effect thereof at any subsequent stage or collaterally unless it is demonstrated that the finding was obtained by fraud or the Court lacked jurisdiction to pass the order. The hierarchy in the judiciary exists to afford litigants to climb up the ladder in pursuit of justice and to right a wrong committed at a lower level. But if a litigant accepts an order, he does it to his prejudice and binds himself thereby.
12. The principle of finality or res judicata, is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that the issues decided may not be reopened , and has little to do with the merit of the decision. If it were to be otherwise, no dispute can be resolved or concluded. The principles of res judicata and constructive res judicata apply equally to proceedings under Article 226 of the Constitution.
14. The remedy the law provides to the defendants/petitioners to be pursued if they were really aggrieved by the order dated November 19, 2009 was abandoned. Once the order dated November 19, 2009 was allowed to attain finality, the defendants/petitioners could not have file a fresh application praying for a relief that they had prayed earlier and were refused. The application dated May 5, 2010 was barred by the principles of res judicata. It is settled law that res judicata applies at different stages of the same proceedings [see (2005) 1 SCC 787: Bhanu Kumar Jain vs. Archana Kumar]. The defendants/petitioners, therefore, did not have any right in law to file the application dated May 5, 2009 and by rejecting the same the trial Court did not commit any illegality warranting interference.
15. Mr. Sahoo submitted on the basis of the decision in Surya Dev Rai (supra) that this is a sort of case where a stitch in time would save many nines. I am afraid, I am not persuaded to concur with him. If the Court allows an order which has attained finality to be revisited by the same Court oblivious of the doctrine of finality of judicial decisions, that would amount to subversion of law which every Court of law should shun.
16. The other decisions cited by Mr. Sahoo relate to well-settled propositions that procedural laws are intended to aid dispensation of justice and ought not to be construed in a manner so as to defeat justice instead of promoting it.
17. There cannot be any quarrel with regard to the proposition that something which is designed to facilitate justice and further its ends ought not to be construed in a manner lest furtherance of justice is frustrated. However, Section 11 of the Code embodying the principles of res judicata are substantive provisions of law and cannot be ignored even though a party may stand to suffer by reason of his neglect to subject the earlier order to challenge or by his conduct of accepting it for the time being and challenging it later, thereby allowing limitation to creep in.
18. I find no reason to interfere. The application stands dismissed without costs.
19. The trial Court is encouraged to expedite its decision on the suit. Urgent Photostat certified copy of this judgment and order, if applied for, shall be given to the applicant as early as possible.