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Judgment
Harish Tandon, J.—The entire gamut of dispute involved in this revisional application relates to the power of the Court to recall the witness under Order 18 Rule 17 of the CPC at the argument stage for production of the additional documents which could not be produced at the time of adducing evidence despite due diligence. The facts which are more or less undisputed are adumbrated for the purpose of determination of the dispute as indicated above.
The opposite party No. 1, the decree-holder, filed Ejectment Suit No. 170 of 1995 against the opposite party No. 2, the Judgment debtor, for eviction on the ground of default. The suit was, subsequently, decreed on compromise. The said decree was, thereafter, put into execution in default of the compliance by the opposite party No. 2 which gave rise to the registration of the Ejectment Case No. 2 of 2009. Because of the resistance being put to the seal bailiff In executing the writ of possession, an application under Order 21 Rule 97 of the CPC was filed which was registered as Miscellaneous Case No. 4099 of 2009. The petitioner herein, thereafter, filed an application under Order 21 Rules 99 & 101 of the Code being Misc. Case No. 4485 of 2009 claiming independent right, title and interest in respect of a portion of the decreetal property. The evidence on the part of the Petitioner Company was completed in the month of December 2009 (As per the submissions of the respective Advocates) though the Trial Court recorded that it was completed on January 16, 2010. Admittedly, neither the decree-holder nor the judgment debtor adduced any evidence in the said proceeding on their behalf. The suit was, thereafter, posted for argument but no final decision has been taken in the said Misc. Case. On 24.06.2011, the petitioner filed an application under Order 18 Rule 17 of the Code seeking an order to adduce additional evidence in support of the documents annexed thereto. According to the petitioner, those documents could not be produced at the time of adducing evidence despite due diligence and came to his knowledge and possession after the closure of the evidence. Another similar application was taken out on August 3, 2011 for production of the further documents which came in possession subsequently and has material bearing on the point in issue involved in the said Misc. Case.
The Miscellaneous Case filed by the petitioner was proceeding in slow pace. The opposite party No. 1 (decree-holder) filed an application under Article 227 of the Constitution (C.O. No. 2998 of 2011) for expeditious disposal of the same. While disposing of the said application, this Court observed that the aforesaid two applications filed under Order 18 Rule 17 of the CPC are pending and, therefore, required to be disposed of first. It is categorically observed in the said order that the argument on behalf of the opposite party No. 2 (judgment debtor) has already been closed.
Pursuant to the said direction, the aforesaid two applications were taken up by the Executing Court and were rejected as the Order 18 Rule 17 of the Code empowers the Court to recall the witness suo moto and not at the instance of the parties. The said order was set aside in another revisional application (C.O. 3786 of 2011) relying upon the judgment of the Apex Court rendered in case of Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, where it is held that the power to recall the witness may be exercised by the Trial Court even, on the application of a party to the proceeding. The Court, thereafter, directed the executing Court to consider the said application afresh in accordance with law. The aforesaid applications are again dismissed by the Executing Court primarily on the ground that Order 18 Rule 17 of the Code does not provide for adducing further evidence. The Trial Court held that the aforesaid power was conferred under Order 18 Rule 17A of the Code which is subsequently omitted by CPC (Amendment Act, 1999) which came into effect on and from July 1, 2002.
Mr. Sabyasachi Bhattacharya, the learned Advocate appearing for the petitioner submits that the additional documents which were not within the knowledge and possession of the petitioner at the time of adducing the evidence which was closed in the month of December 2009, should be allowed to be tendered in evidence upon recalling the witness, as the same has substantial bearing over the subject matter of the said miscellaneous proceeding. Mr. Bhattacharya further submits that the Courts'' power is not restricted and/or fettered to allow a party to adduce further evidence at any stage of the proceeding if such evidence has a material bearing and nexus to the dispute involved therein. He vehemently submits that those documents if allowed to be taken in evidence, would show that the decree passed in the Ejectment Suit is collusive one, as the same party has obtained the decree against himself with the sole intention to evict the protected sub-tenant. Lastly, he submits that the Trial Court has rejected the aforesaid applications in taking aid of the omission and/or deletion of the provision contained under Order 18 Rule 17A of the Code and has not considered the aforesaid applications on merit.
Mr. S.P. Roy Chowdhury, the learned Senior Advocate, appearing for the opposite party No. 1 (decree-holder) refuted the contention of the petitioner and submits that the aforesaid applications are mala fide and are taken out to drag and delay the proceeding. He further submits that the Apex Court in case of Vadiraj Naggappa Vernekar (supra) have indicated a note of caution to use the power under Order 18 Rule 17 of the Code in routine manner and have held that it should be exercised sparingly and should not be utilized for filling up the gaps in the evidence of the witness which has been elicited during the cross-examination. He vehemently submits that the aforesaid applications were filed at the argument stage with the mala fide intention to deprive the judgment debtor to enjoy the fruits of the decree so obtained. Lastly, he submits that an attempt was made by the petitioner to stay the further proceedings of the said Misc. Case till the disposal of a proceeding initiated before the rent controller u/s 26 of the West Bengal Premises Tenancy Act, 1997 which was turned down by this Hon''ble Court. He placed the judgment dated April 28, 2011, passed in C.O. No. 406 of 2010 wherein this Court expressly recorded that the petitioners are adopting dilatory tactics to prolong the litigations.
From the submissions so advanced by the respective Councils, admittedly, the aforesaid two applications are taken out by the petitioner at the stage of argument. An earlier attempt to forestall the process of the Misc. Case could not yield the fruitful results as the Court thought that the pendency of a proceeding before the Rent Controller u/s 26 of the said Act has no impact on the consideration of the disputes involved in the instant Misc. case. There is no impediment in allowing an application which stands on its independent footing despite the fact that an earlier application taken out on a different footing ended In dismissal unless, the findings made therein stands in the way of considering the other applications. Section 26 of the West Bengal Premises Tenancy Act, 1997 bestowed some right upon the sub-tenants to be elevated to the position of a tenant provided the provisions contained therein, are rigorously observed and followed. The said proceedings stands upon a separate and independent footings and have nothing to do, so far as the present applications are concerned.
From the plaint reading of Order 18 Rule 17 of the Code, this Court does not find any restriction imposed therein in filing an application at the argument stage provided of course that the Court opines that the witness is to be recalled. The Court may put such questions to him as it thinks fit. The said provision certainly is not intended to enable the parties to recall any witness to place additional material or evidence which could not be produced at the time of adducing evidence. It still remains in the procedural law to enable the Court to clarify any issue or doubt by recalling any witness either suo motto or an application of any of the parties for the purpose of putting questions and eliciting the answers. After the deletion and/or omission of Order 18 Rule 17A of the Code of Civil Procedure, there is no specific provision enabling the parties to reopen the evidence for placing the additional material or evidence.
One may recall that the inherent power of every Court is provided u/s 151 of the Code for rendering Justice in accordance with law to do, what is "right" and undo, what is "wrong" to meet the ends of Justice and to prevent the use of its process. While legislating all probable eventualities could not be conceived and in absence of any specific provisions, the inherent power can be used to deal with such situation or aspect if the ends of justice demand so.
In exercising the inherent power, the Court should be doubly cautious and the exercise of power depends upon the discretion and wisdom of the Court and in the facts and circumstances of the case. Such power should be used with great circumspection and care and only in case of absolute necessity, more particularly, when there is no specific provisions in the Code governing the matter.
Although the provisions contained under Order 18 Rule 17A was deleted with effect from January 1, 2002, but such deletion does not take away the inherent powers of the Court in not receiving the evidence after the closure of the evidence even at the argument stage.
The Trial Court have proceeded that because of the omission and/or deletion of Order 18 Rule 17A of the Code, no power is vest upon the Court to receive the additional evidence after the closure of the evidence or at the argument stage. Such findings in my considered opinion cannot be sustained, if otherwise, the additional evidence sought to be produced are genuine or relevant and shall assist the Court in rendering the justice. If the Court is satisfied that non-production of such evidence was for valid and sufficient reasons, the Court may exercise its discretion to recall witness or to permit the fresh evidence u/s 151 of the Code. The Court may also award the appropriate costs to the other party to compensate the delay in making this aforesaid applications.
Although, Mr. Roy Chowdhury, the learned Senior Advocate would contend that the Trial Court has also considered the said application on merit, but apart from the stray sentence that those documents are not practically relevant, the entire consideration is based upon the omission and/or deletion of the provisions contained under Order 18 Rule 17A of the Code which provides for production of the additional evidence.
This Court, therefore, does not find that the Executing Court has considered the said application on merit and there is no recording of the satisfaction, as to whether, the documents sought to be produced by way of an additional evidence are at all material and/or relevant in relation to the subject dispute.
This Court, therefore, set aside the impugned order and direct the Executing Court to reconsider the said applications on merit and shall see that the same is disposed of within three weeks from the date of the communication of this order.
It is hereby recorded that if the Executing Court finds that the additional evidence if allowed to be produced would assist the Court to clarify the evidence on the issues and in rendering the justice may exercise its discretion to permit the party to adduce such evidence by compensating the other party in awarding the costs, if the Executing Court is of the opinion that those additional evidences are irrelevant and an application is made to protract the litigation, it would reject the same with heavy costs.
With this observation, the revisional application is disposed of. However, there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.