Manju vs Pramod Kumar

Sujoy Paul, J.—The petitioners/defendants No. 1 and 2 filed this petition assailing the order dated 29.10.2013 passed in Case No. 16A/2013 C.S. (Annexure P/1).

Plaintiff/respondent filed a suit for eviction and recovery of rent. The court below after completion of pleadings framed the issues. The plaintiff led his evidence and exhibited 12 documents from Ex. P/1 to Ex. P/12. Thereafter, defendants started their evidence. During cross-examination of defendant No. 1, a registration certificate of the shop/betel shop was produced and was marked as Ex. P/13. At this stage, the petitioners filed an application under Order 18 Rule 17, read with Section 151 of the Code of Civil Procedure. It is prayed that the registration certificate produced during cross-examination of defendant No. 1 is a forged document, which was deliberately not produced by the plaintiff while leading evidence. It is urged that another document, which is produced during cross-examination of defendant is a photo. Thus, in the light of this subsequent event and production of certificate and photograph aforesaid, it is necessary to recall the witnesses of plaintiff in order to permit the defendants to cross-examine them. Said application was opposed by filing reply dated 28.10.2013.

Shri D.D. Bansal, learned counsel for the petitioners submits that under Order 18 Rule 17 CPC, the court may suo motu or on an application can recall the witnesses. He relied on certain judgments in this regard.

On the other hand, Shri P.C. Chandil, learned counsel for the respondent/plaintiff supported the order. By placing reliance on Surinder Kaur Vs. Karanbir Singh, and Devendra Kumar Jain Vs. Manoharlal Jain, it is urged that power under Order 18 R. 17 can be exercised suo motu by the court. This cannot be done on an application filed by the party. On merits, he supported the order passed by the court below.

I have heard learned counsel for the parties and perused the record.

The court below rejected the application (Annexure P/6) on the ground that as per O.18 R. 17 CPC, a party cannot be permitted to recall the witness for the purpose of cross-examination. It is further held that the judgments relied upon by the defendants are not applicable because in those cases the witnesses were recalled because the additional documents subsequently exhibited were containing their signatures. In the present case, the facts are different. Lastly, it is held that during cross-examination of defence witnesses, the defendants have not chosen to file any document in rebuttal. Thus, at the stage of final argument, the application cannot accepted.

The question whether the court can exercise power under O.18 R. 17 suo motu or it can also be exercised on an application, is no more res integra. In Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, the Apex Court made it clear in para 29 that the said power can be exercised either on its own motion or on an application filed by any of the parties to the suit. In view of this Supreme Court judgment, earlier judgments of High Court cited by Shri Chandil are of no assistance to him.

The Apex Court in Vadiraj Naggappa Vernekar (supra), opined that the power under O.18 R. 17 CPC is to be sparingly exercised. It cannot be exercised as a general rule on mere asking. It cannot be exercised on the ground that it will not cause any prejudice to the other side. It can be exercised to clear any ambiguity that may have arisen during the course of recording of evidence. It is the discretion of the trial court to permit recall of a witness for re-examination in chief with permission to the defendants to cross-examine the witness thereafter.

In 2012(3) MPLJ 53 (Mohansingh Raghuvanshi vs. Ujjain Municipal Corporation) and others), this Court examined an order of the trial court, whereby prayer of respondents No. 3 and 4 therein to recall plaintiffs'' witness for cross-examination was allowed. In that case, after completion of evidence of plaintiff the case was fixed for recording of evidence of defendants. During cross-examination of respondent No. 3, two documents were tendered in evidence by plaintiff. After completion of evidence of respondents No. 3 and 4, an application u/O. 18 R. 17 was filed alleging that there is interpolation in the documents, therefore, the respondents No. 3 and 4 be permitted to recall the plaintiff for cross-examination. The trial court allowed the said application. It was put to test before this Court. This Court after considering the judgment of Supreme Court in the case of K.K. Velusamy Vs. N. Palanisamy, upheld the order of trial court.

In K.K. Velusamy (supra), the Apex Court opined that in the absence of any provision providing for reopening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power u/S. 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination. It is made crystal clear by the Apex Court that this inherent power u/S. 151 CPC is not affected by the express power conferred u/O. 18 R. 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.

In the opinion of this Court, the present case has a glaring similarity with Mohansingh Raghuvanshi (supra). In the opinion of this Court, once a stand is taken by the defendants that the subsequently exhibited document during cross-examination of defendant No. 1 (Ex. P/13) is a forged document, it is necessary to permit the defendants to cross-examine plaintiffs'' witnesses in this regard. It makes no difference whether the signatures of plaintiffs'' witnesses are their on the said certificate marked as Ex. P/13. Even if Order 18 Rule 17, in its strict sense, has no application, the power u/S. 151 CPC can be invoked for this purpose, as held in K.K. Velusamy (supra). The court below has failed to consider this aspect and resultantly failed to exercise its discretion.

In the light of aforesaid analysis, in my opinion, the order impugned cannot be permitted to stand. In the result, the order is set aside. Petition and the application preferred u/s. 151 CPC (Annexure P/6) is allowed. The court below shall proceed from the appropriate stage. No costs.