G. Venkateswaran vs Prabhavathy

K. Kalyanasundaram, J—This Civil Revision Petition is directed against the order dated 20.02.2015 passed in I.A. No. 13 of 2015 in H.M.O.P. No. 101 of 2013 by the learned Principal Subordinate Judge, Tirupur.

The petitioner has filed Original Petition in H.M.O.P. No. 101 of 2013 against the respondent under Section 13(1)(a) and 13 (iii) of the Hindu Marriage Act seeking dissolution of the marriage solemnized on 06.03.2006.

The petitioner has also filed an application in I.A. No. 13 of 2015 under Order XVIII Rule 17 and Section 151 of the Civil Procedure Code to reopen the case to let in further evidence by the petitioner. The application was opposed by the respondent by filing a counter affidavit. The Trial Court dismissed the application on 20.02.2015 holding that after examination of witnesses, the Original Petition is posted for arguments and the application was filed at a belated stage. Challenging the order, the present Civil Revision Petition is filed.

Mr. A.K. Sridharan, learned counsel for the petitioner submitted that the respondent has refused that she was taking treatment for her mental illness and only to prove that still the respondent is suffering from mental illness, further examination of the petitioner is very much necessary. The learned counsel further submitted that if the further evidence is not adduced by the petitioner, it will cause great prejudice to him.

At this juncture, it is useful to refer to the judgment of the Honourable Supreme Court in K.K. Velusamy Vs. N. Palanisamy, (2011) 3 CTC 422 : (2011) 4 JT 38 : (2011) 2 RCR(Civil) 875 : (2011) 4 SCALE 61 : (2011) 11 SCC 275 : (2011) 4 SCR 31 , wherein it has been held as follows:

"8. Order 18, Rule 17 of the Code enables the Court, at any stage of a Suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18, Rule 17 can be exercised 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. The power is discretionary and should be used sparingly in appropriate cases to enable the Court to clarify and 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. (Vide Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, AIR 2009 SC 1604 : (2009) 7 JT 202 : (2009) 4 SCALE 90 : (2009) 4 SCC 410 : (2009) 3 SCR 1071 . Order 18, Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18, Rule 17 is primarily a provision enabling the Court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the Court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions."

The Supreme Court in its judgment in Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, AIR 2009 SC 1604 : (2009) 7 JT 202 : (2009) 4 SCALE 90 : (2009) 4 SCC 410 : (2009) 3 SCR 1071 has held as follows:

"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.

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.

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 settle 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 herein above, 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."

Similar is the view taken by the Supreme Court in its judgment in Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, (2013) 3 AD 235 : AIR 2013 SC 1849 : (2013) 116 CLT 489 : (2013) 3 JT 192 : (2013) 170 PLR 259 : (2013) 3 RCR(Civil) 304 : (2013) 2 SCALE 769 : (2013) 14 SCC 1 : (2013) AIRSCW 1564 .

In the light of the judgments of the Supreme Court cited supra, the parties cannot be permitted to reopen the case to fill up lacuna. The Trial Court has rightly rejected the application. Hence, I do not find any reason to interfere with the order of the Trial Court.

In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.