As against the order dated 7.11.2008 passed in IA.No.514/2008, which was filed by the petitioner/ plaintiff to reopen the evidence for the purpose of examination of the scribe as a witness on his side, in OS.No.787/2001 by the learned Principal Sub Judge, Trichy, dismissing the said application, this civil revision petition has been filed by the petitioner/plaintiff, contending inter alia that the court below failed to consider the fact that the scribe, who was sought to be examined, was employed at Bangalore and there was difficulty in summoning him, however as he resigned his post and settled at Trichy presently, necessity has arisen to examine him as a witness in order to prove the case of the plaintiff.
2. On the other hand, the learned counsel for the respondent would submit that the scribe is none other than the son of the plaintiff and the said fact has been suppressed by the petitioner and there could not be any difficulty for him to examine his son, who would not refuse to oblige him, had he been summoned and this petition is filed only to fill up the lacuna. He would submit that only when during non examination of the scribe, the same was pointed out by the learned trial judge during the course of the arguments, the petitioner had come with the petition belatedly. He would submit that the principles applicable to Order 18 Rule 17 of CPC could be applied for summoning the witnesses under Section 151 CPC, when a party makes an application under the aforesaid section to reopen the evidence and examine the witnesses after the entire evidence was over. The learned counsel drew the attention of this court to the observations made by the Honourable Supreme Court rendered in the case Vadiraj Naggappa Vernekar (Dead) through LRs Vs. Sharadchandra Prabhakar Gogate [2009-4-SCC-410], wherein it is held that Order 18 Rule 17 of CPC is not intended to be used to fill up the omission in the evidence of a witness and the main purpose of Order 18 Rule 17 of CPC is to enable the court to clarify any doubts that might arise during the cross examination.
3. It is well settled said that an opportunity to a party to recall or examine any witnesses may not be refused on the ground that the evidence on both sides are over and it is posted for arguments, as hearing of arguments in a suit is not a distinct stage of the hearing contemplated by CPC, but it is a part of hearing just as such as recording of evidence. It follows that before arguments are concluded, a party is entitled to request the court to receive any further oral or documentary evidence provided that it is not to fill up the lacuna and in such case, it is left to the court, in exercise of its discretion, to grant it or not.
4. In the instant case, evidence on both sides has been over and when the case was posted for arguments, the plaintiff has filed this petition to examine the scribe of the promissory note as his witness. Admittedly, the scribe is the son of the plaintiff and his evidence was within the knowledge of the plaintiff. However, he has not taken any steps to examine him as a witness either at the time when his evidence was adduced or at the time when the defence evidence was let in. The reasons assigned by the petitioner that the said witness was employed at Bangalore and could not be summoned cannot be considered as a valid and proper reason. Indisputably, the said evidence was available at the time when the plaintiff examined his witnesses and it is not as if certain new facts had been noticed subsequently, which were not within the knowledge of the petitioner, that had necessitated him to file the said petition. In such view of the matter, I am of the considered opinion that the petitioner has not made out a case to examine the scribe as a witness at this stage when the entire evidence was over and this court finds no illegality or infirmity in the impugned order of the court below and no interference by this court is warranted.
5. In the result, this civil revision petition is dismissed. No costs. Consequently, the connected MP is closed.
Srcm To:The learned Principal Sub Court, Trichy.