B. Kamesh vs B. Santhanalakshmi

R. Mala, J.—The Civil Revision Petitions are filed against the fair and decreetal order dated 26.03.2013 made in I.A. Nos. 4114 to 4116 of 2012 in O.S. No. 12844 of 2010 on the file of XVII Additional Court, City Civil Court, Chennai.

Learned counsel for the revision petitioners submitted that the first respondent herein as a plaintiff filed a suit for partition and separate possession of her 1/5th share in the suit property against her brothers and sister. After oral evidence of both sides were closed and arguments heard and when the matter was posted for judgment, the plaintiff has come forward with the applications in I.A. Nos. 4114 to 4116 of 2012 to reopen the case and to recall the evidence of P.W.1 and to condone the delay in reception of additional documents. The trial Court, after considering the submissions made by both sides, allowed the applications, against which, the present revision petitions have been preferred by the revision petitioners/defendants 1 and 2. To substantiate his arguments, he relied upon the decision of this Court reported in 2014 (3) CTC 518 (S.Ramasamy v. Perumal and others), wherein it has followed the Apex Court decision reported in Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, and held that after commencement of trial, case cannot be reopened and witness cannot be recalled to fill up the lacunae. Therefore, he prayed for allowing of the revision petitions.

Resisting the same, learned counsel for the first respondent submitted that the documents now sought for by the plaintiff/first respondent pertaining to the previous Court proceedings between both the parties. The first respondent herein as the plaintiff filed a suit for partition in the year 1998, which was dismissed for default. It is further submitted that at that time, plaintiff was a minor and she is not aware of the fact. During cross-examination of D.W.1, the second revision petitioner has stated that he could not able to remember the signature found in the written statement filed in O.S.NO.7728 of 1998. It is further submitted that after closing of plaintiff''s side witness and pending cross-examination of D.W.1 only, she came to know about the documents. Hence, those documents are necessary for proper adjudication of the matter. If the documents are marked, no prejudice would be caused to the defendants. Hence, to render complete justice, those documents are necessary. The trial Court has considered the same in proper perspective and rightly granted permission to the plaintiff. Therefore, the order passed by the trial Court is neither perverse nor error in jurisdiction and there is no need to invoke revisional jurisdiction. Hence, he prayed for dismissal of the revision petitions.

Heard the learned counsel appearing for the respondents 2 and 3.

Considered the rival submissions made on both sides and perused the typed set of papers.

The first respondent herein as a plaintiff filed a suit for partition and separate possession of her 1/5th share in the suit property against her brothers/defendants 1 to 3 and sister/4th defendant. The defendants 1 and 2/revision petitioners herein filed the written statement and contested the same. It is an admitted fact that after the case was posted for judgment, the plaintiff has come forward with the applications to reopen and to recall the evidence of P.W.1 and reception of the additional document.

Before going to the facts of the case, it is appropriate to consider the decision of this Court relied upon by the learned counsel for the revision petitioners reported in 2014 (3) CTC 518 (S.Ramasamy v. Perumal and others), wherein, it was specifically rendered after commencement of trial, unless they pleaded that due diligence, they are not able to collect the materials and then only they are entitled to reopen the case and recall the evidence and also to file the document. In para-13, it was held as follows:

Yet another decision relied on by the learned counsel for the petitioner was reported in Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, , wherein it was held that it is well settled that the power to recall any witness under Order 18 Rule 17 can be exercised by this Court either on its own motion or on an application filed by any of the parties to the suit. However, 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. It is appropriate to incorporate the relevant portion in paragraphs 8, 11 and 12 of the said judgment:

8) In Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, , this Court had an occasion to consider similar claim, particularly,application filed under Order XVIII Rule 17 and held as under:

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.

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.

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.

Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the court''s discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.

11) The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons known to it, still the plaintiff has not placed these bills on record. In such circumstance, as rightly observed by the trial Court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of judgment,we are of the view that the plaintiff cannot be permitted to file such applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the trial Court, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words ''at any stage'' occurring in Order XVIII Rule 17 casually set aside the order of the trial Court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW-1 to prove those bills. Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of the court and Court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial Court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 of CPC, the plaintiff cannot be permitted.

12) After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC.

The above citation is not applicable to the facts of the present case. In the above decision, the suit was filed and after cross-examination has been over, the defendants filed an application to recall P.W.1 stating that they omitted to put some questions before P.W.1 in his cross-examination. In that decision, it was held that no person has been permitted to fill up the lacunae by way of allowing recall application. But in the case on hand, the suit in O.S. No. 7728 of 1998 was filed by the first defendant/elder brother of the plaintiff, which was dismissed for default. At that time, the plaintiff is a minor. Both the parties in this suit are also parties to the previous proceedings. In such circumstances, the documents as sought for by the plaintiff are necessary for disposal.

Admittedly, as per the averments in the applications, it was specifically stated by the plaintiff that during cross-examination of D.W.1, second respondent/second revision petitioner herein has answered that he could not able to remember the signature in the written statement filed in the suit in O.S. No. 7728/1998. Since the document came into the plaintiff''s knowledge only after closing of her side evidence and pending cross-examination of D.W.1, she could not able to mark the said document. It is to be noted that the plaintiff/first respondent herein has also given reasoning that since she was a minor at the time of filing of previous suit in O.S. No. 7728/1998, she was not aware of the proceedings. In such circumstances, to render complete justice, the documents as sought for by the plaintiff are necessary and it is not for fill up the lacunae in the evidence. Hence, the trial Court has considered all the aspects in proper perspective and came to the correct conclusion. So I do not find any merits in the revision petitions and they are hereby dismissed.

In the result, the Civil Revision Petitions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.