K.S. Ramanathan vs N.K.T. Subramanian and Others

S. Palanivelu, J.—The petitioner herein is the 1st defendant in O.S. No. 116 of 2004 on the file of the learned Additional District and

Sessions Judge, (Fast Tract Court), Dindigul. The said suit is for partition. The trial was taken up and the evidence of parties were closed and after

arguments of the plaintiffs, the case was posted for defendants'' side arguments. At that time, the petitioner herein/1st defendant came forward with

three applications in I.A. Nos. 182 to 184 of 2001 for the purpose of reopening the case, receiving additional written statement and for recalling

D.W.1. The purpose for filing those applications is that even though the 1st defendant has pleaded about the registered Will executed by his

paternal uncle on 23.02.1947, he could not produce the same during earlier proceedings of the case and he got only recently and for its

production, he filed those applications. It is stated that by oversight some averments were not mentioned in the written statement about the loss of

registered Will dated 23.02.1947 executed by the petitioner''s paternal uncle late Meenatchisundaram Pillai. Those applications were hotly

contested by the other side. They filed counter stating that the petitioner herein/1st defendant has come forward with a new plea of alleged loss of a

material document by way of third additional written statement to fill up the lacuna of non-production of the alleged original Will of the year 1947,

now after 7 years. If the third additional written statement is allowed to be filed, it will virtually change the nature of the defence itself and it will

require denova trial and take away the valid admissions made by D.W.1 and it will also alter the very basis of the suit and defence. The non-

production of the original Will, dated 23.02.1947, will go to the root of the defence and it is also fatal to the case of the defence and it cannot be

substituted by any explanation by way 3rd additional written statement. Hence, the applications have to be dismissed.

After hearing both sides, the learned Additional District and Sessions Judge, (Fast Tract Court), Dindigul, dismissed all the three applications

observing that no reason was furnished by the petitioner/ 1st defendant for non-production of the document for 7 years and that in case, if the

applications are allowed, it will prejudice the rights of the plaintiffs and that the 1st defendant failed to state the reasons for loss of the Will in the

written statement.

The said orders passed by the Court below are challenged in these revision petitions.

The learned counsel for the petitioner Mr. R. Nandakumar would contend that the petitioner has consciously pleaded about the Will, with

particular reference to the date of the same in the written statement, in support of the bonafide claim of the defendants. There is no attempt on the

part of the defendants to fill up any lacuna in the evidence. The petitioner herein/1st defendant wants to produce the document, which was also

pleaded and referred to in the evidence. Further, the parties can file additional written statements at any time before the judgment in the suit was

pronounced and that there is no legal impediment to entertain the applications.

Mr. M. Elanchezhian, learned counsel for the respondents would submit that there is no proper reason for non-production of the Will in the

reasons stated in the additional written statement filed by the petitioner herein/1st defendant, and that the reason in the additional written statement

that by oversight, the averments with reference to the loss of Will were not made in the written statement, is false. The 1st defendant tries to fill up

the lacuna in the evidence by producing the said Will, which is impermissible in law. After a long time, when the case was posted for hearing

arguments of the defendants and long after recording of evidence, the present applications could not be entertained.

The plaintiffs in the plaint stated that in respect of other properties of Meenatchisundaram Pillai, he had dealt with by executing registered

documents. But, so far as the suit property is concerned, Meenatchisundaram Pillai did not deal with the same by any document either registered

or unregistered.

The It defendant/petitioner herein has stated in his written statement, in para 7, to the effect that Meenatchisundaram Pillai had bequeathed the

suit property in favour of his own brother Subramania Pillai through a registered Will dated 23.02.1947 and the Will was attested by

Chidambaram Pillai and Thaiyalbagam Pillai, the other brothers of Meenatchisundaram Pillai.

The learned counsel for the petitioner herein/1st defendant brings to the notice of this Court the admission of P.W. 1/1st plaintiff with regard to

the Will in his cross-examination. He deposed that Meenatchisundaram Pillai, in respect to the suit property, has executed a Will in favour of

Subramania Pillai on 23.2.1947, in which Chidambaram Pillai and Thaiyalbagam Pillai (father of P.W. 1) have attested.

When the above said circumstances are taken into consideration, it is made clear that the existence of the Will, dated 23.02.1947, was pleaded,

which is a registered one and the 1st plaintiff has also consciously admitted the execution of the Will by Meenatchisundaram Pillai and attested by

his father.

In this context, this Court is unable to see any malafide intention on the part of the petitioner herein /1st defendant to fill up any lacuna.

In the additional written statement the reason stated by the petitioner is that the Will was not available at the time of filing of the written

statement and recording of evidence stage. Being a registered Will and admitted by P.W.1, there could not have been any intention on the part of

the 1st defendant to suppress the existence of the Will, when he was in possession of the same at the earlier point of time.

The learned counsel for the petitioner placed reliance upon the decision of the Delhi High Court reported in Suresh Kumar Vs. Baldev Raj, , in

which it is observed that the discretion vests with the Court to recall a witness, who has been examined earlier, at any stage of the suit, which

would evidently mean, any stage before the judgment is pronounced and the stage of the case alone should not weigh with the Court to such an

extent as to overshadow the other aspects of the matter.

The learned counsel for the petitioner also cites a decision of Andhra Pradesh High Court reported in Gullipalli Naram Naidu Vs. Kinthali

Kumaraswami, in which it is observed that after tracing out the original sale deed, the plaintiff therein sought only replacement of the certified copy

already filed and permitting the said replacement will cause no prejudice to the other side.

The learned counsel for the petitioner placed reliance upon the decision of the Honourable Supreme Court in Vadiraj Naggapa Vernekar (D)

Through Lrs. Vs. Sharad Chand Prabhakar Gogate, , in which it is observed as follows:

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.

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.

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.

Considering the facts and circumstances of the case, as adverted supra, this Court is of the firm view that there is no intention on the part of the

petitioner herein/1st defendant to fill up any lacuna in the evidence. All the circumstances of the case would indicate that no prejudice would be

caused to the other side, since they are not taken by surprise, but they were already made known about the existence of the Will, and it was

admitted by P.W.1. In these circumstances, there is no legal embargo to entertain the applications for reopening the case and recalling P.W.1 and

to receive the additional written statement.

In such view of the matter, the orders passed by the Court below warrant interference from this Court, which are liable to be set aside. The

revision petitions deserve to be allowed. In fine, all the above Civil Revision Petitions are allowed and the orders made in I.A. Nos. 182 to 184 of

2011 respectively in O.S. No. 116 of 2004 on the file of the Additional District and Sessions Judge, (Fast Tract Court), Dindigul, are set aside.

The learned Additional District and Sessions Judge, (Fast Tract Court), Dindigul, is directed to dispose of O.S. No. 116 of 2004 within a period

of three months from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed. No costs.