The defendant in the suit has filed these revisions challenging the fair and decreetal orders dated 26.09.2013 made in I.A.Nos.782 and 783 of 2013 in O.S.No.194 of 2008 on the file of the learned District Munsif Court, Palladam.
2. The facts in brief are as under: The respondent/plaintiff filed the suit, inter alia, seeking grant of permanent injunction restraining the petitioner/defendant from interfering with the respondent's peaceful possession and enjoyment of the suit property, more particularly, using the suit cart track.
3. The said suit was resisted by the petitioner/defendant by filing a written statement.
4. Three witnesses, viz., P.Ws.1 to 3, were examined on the side of the respondent/plaintiff and the suit was posted for further evidence on the side of the plaintiff. The respondent/plaintiff wanted the evidence of P.W.2 (Chinnasamy) to be re-opened for producing the accompanying documents as respondent/plaintiff's side exhibits. It is stated that the said documents were not produced at the first instance of examination of P.W.2, as the said documents were misplaced and thereafter fresh copies were applied for and obtained. For this purpose, the respondent/plaintiff filed I.A.No.782 of 2013 to reopen the evidence of P.W.2 (Chinnasamy) and I.A.No.783 of 2013 to order recall of P.W.2 (Chinnasamy) for producing and marking the accompanying documents as plaintiff's side exhibits.
5. The petitioner/defendant resisted the said applications by filing counter affidavits. The petitioner/defendant contended that P.W.2 neither in his proof affidavit nor in his deposition averred anything of the alleged documents dated 28.2.1927 and 4.9.1968 and no pleadings have been made in the plaint qua the said documents and, therefore, the respondent plaintiff is not entitled to mark those alleged documents. It was further alleged that the respondent/plaintiff to protract the proceedings and fill up the lacuna is attempting to mark those documents and the same should not be permitted.
6. The Court below, by order dated 26.9.2013 made in I.A.No.782 of 2013, observed that the documents sought to be marked, viz., (i) partition deed dated 28.2.1927; and (ii) partition deed dated 4.9.1968, bear reference in Ex.A2, which had already been marked and allowing parent documents mentioned in Ex.A2 to be marked will not prejudice the case of the petitioner/defendant, and thus allowed the applications seeking recall and re-open of evidence of P.W.2 on payment of costs of Rs.1,000/- in each of the applications.
7. Assailing the said orders, the present civil revision petitions has been filed by the petitioner/defendant.
8. The learned counsel appearing on behalf of the petitioner/ defendant submitted that the reopening and recalling of evidence of P.W.2 to fill up the lacuna is against the law and weight of evidence. He added that when P.W.2 had already been examined in chief on 1.7.2013 and in cross on 7.8.2013, the applications filed by the respondent/plaintiff under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure are only to protract the proceedings and, therefore, the same ought not to have been entertained by the Court below.
9. The learned counsel appearing on behalf of the respondent /plaintiff reiterated the reasons that weighed with the Court below is allowing the applications and prayed for dismissal of these revisions.
10. I heard Mr.N.Manokaran, learned counsel for the petitioner and Mr.K.S.Jeya Ganesh, learned counsel for the respondent in both the Civil Revision Petitions and perused the documents available on record.
11. It is trite that the power to recall any evidence under Order XVIII Rule 17 C.P.C. by the Court either on its own motion or on an application filed by any of the parties to the suit requesting the Court to exercise the said power is discretionary and should be used sparingly in appropriate cases to enable the Court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. This principle find support from the law laid down by the Hon'ble Supreme Court in the case of Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410.
12. In the case on hand, the trial Court specifically observed that the documents sought to be marked viz., (i) partition deed dated 28.2.1927; and (ii) partition deed dated 4.9.1968, bear reference in Ex.A2, which had already been marked and allowing parent documents mentioned in Ex.A2 to be marked will not prejudice the petitioner/ defendant. Nothing has been placed on record by the petitioner/ defendant refuting the said finding of the Court below. The petitioner had not placed on record an iota of evidence to show that the documents sought to be marked are not referred to in Ex.A2. Therefore, it can be only be concluded that the documents sought to be marked are admittedly the parent documents already referred to in Ex.A2, which has been marked.
13. In the case of K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, the Hon'ble Supreme Court rejected the contention that Section 151 cannot be used for re-opening evidence or for recalling witnesses. Referring to its earlier decisions, in the case of Padam Sen v. State of U.P., AIR 1961 SC 218; Manoharlal Chopra v. Seth Hiralal, AIR 1962 SC 527; Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhay Lal, AIR 1966 SC 1899; Nain Singh v. Koonwarjee, (1970) 1 SCC 732; The Newabganj Sugar Mills Co. Ltd. v. Union of India, (1976) 1 SCC 120; Jaipur Mineral Development Syndicate v. Commissioner of Income Tax, New Delhi, (1977) 1 SCC 508; National Institute of Mental Health & Neuro Sciences v. C Parameshwara, (2005) 2 SCC 256; and Vinod Seth v. Devinder Bajaj, (2010) 8 SCC 1, the Hon'ble Supreme Court summarized the scope of Section 151 C.P.C. as under:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on Courts. It merely recognizes the discretionary power inherent in every Court as a necessary corollary for rendering justice in accordance with law, to do what is `right and undo what is `wrong, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the Court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the Court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the Court being complementary to the powers specifically conferred, a Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
(e) While exercising the inherent power, the Court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the Court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a Court, should not however be treated as a carte blanche to grant any relief.
(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of Court.
14. At this juncture, a useful reference may be made to the decisions of the Hon'ble Supreme Court in Vadiraj Naggappa Vernekar vs. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410, Bagai Construction vs. Gupta Building Material Store, (2013) 14 SCC 1, and Ram Rati vs. Mange Ram & Others, (2016) 11 SCC 296, which make it amply clear that the purpose of Order XVIII Rule 17 is to enable a Court to clarify any doubts it may have with regard to the evidence led by the parties. It is not meant to fill up an omission. It is emphatically held therein that this is a power to be exercised most sparingly and carefully and not to be granted for the asking. The relevant portion of the observations made in Vadiraj Naggappa Vernekar, supra, are set out hereunder:
25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.
26. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared.
27. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after the cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed.
28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.
29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.
30. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial court to permit recall of such a witness for reexamination-in-chief with permission to the defendants to cross- examine the witness thereafter. There is nothing to indicate that such is the situation in the present case.
15. It is beyond any cavil that such power conferred on the Courts cannot be used in a routine manner or for the mere asking, otherwise, it will defeat the very purpose of various amendments to the Code to expedite trials. But, where the application is found to be bona fide and where the additional evidence, oral or documentary, may assist the Court to clarify the evidence on issues and will assist in rendering justice, and the Court is satisfied that non-production of such evidence earlier, was for valid and sufficient reason, the Court may exercise its discretion to recall the witnesses or permit the fresh evidence.
16. In the case on hand, the reason adduced by the respondent/plaintiff for not furnishing the said documents at the first instance found favour with the trial Court and moreover it has been specifically held that the documents sought to be marked are parent documents, which have been specifically referred to in Ex.A2. Therefore, ex facie, the same would throw more light and give clarity to the issue and it is only in such view of the matter, the trial Court exercised its discretionary power and permitted recall and reopening of evidence of P.W.2, that too by awarding costs of Rs.1000/- in each of the interlocutory applications. This Court finds no infirmity in the order passed by the Court below.
For the foregoing reasons, these civil revision petitions are dismissed and the orders dated 26.09.2013 made in I.A.Nos.782 and 783 of 2013 in O.S.No.194 of 2008 are confirmed. The trial Court is directed to complete the trial by giving fair opportunity to both the parties and dispose of the suit within a period of two months on day to day basis without giving unnecessary adjournments to either party and both the parties are directed to extend their fullest cooperation for early disposal of the suit. No costs. Consequently, connected miscellaneous petition is closed.
21.02.2017 Note:Issue order copy on 27.09.2018 vs Index : Yes To The District Munsif, Palladam.
M.V.MURALIDARAN, J.
vs Pre-delivery order made in C.R.P.(PD) Nos.4583 and 4584 of 2013 and M.P.No.1 of 2013 21.02.2017