Prabhakumari vs B.L. Geetha and Others

A.N. Venugopal Gowda, J.—IA.VII filed under Section 151; and IA.VIII filed under Order XVIII Rule 17 of the Code of Civil Procedure came to be allowed by order dated 22nd April 2014. Hence the petition.

The leaned counsel appearing for the petitioner-plaintiff submits that the evidence of PW1 was fully cross-examined on 3rd December 2012 and after passing of the orders, the present application has been filed to recall for further cross-examination. He submits that after completion of cross-examination of PW1, it is not open for the party to file an application to recall for further cross-examination and such an attempt is only to drag on the proceedings. In support of his submissions, the learned counsel relied upon the judgment of Hon''ble Supreme Court in the case of 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 and referred to paragraph 12 of the judgment. He also submits that unless it is established that only in compelling circumstances and only for acceptable reasons, the case has to be considered and has to be recalled for further cross-examination. He also read out from the application filed for recalling and submits that there is no compelling situation or a reason that has been addressed to the learned Judge for the purpose of recalling for further cross-examination.

On the contrary, the learned counsel for the respondent submits that after the completion of cross-examination of PW1 on 3rd December 2012, it is the plaintiff who has taken the time in leading further evidence and it is attributable to the plaintiff and not the defendants and for the inaction on the part of the petitioner, it cannot be alleged against the defendants. He submits that the impugned order allowing IAs. 7 and 8 was passed on 22nd April 2014, i.e. almost a year back, and under these circumstances, it would not be proper for this Court to set aside the same.

Heard the learned counsel for the parties and gone through the judgment. For the convenience of the learned Judge of the Trial Court, the observation made at paragraph 12 of the judgment is extracted hereunder:

"12. After change of various provisions by way of amendment in the Code of Civil Procedure, 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 effort made in amending the code of civil procedure is to expedite the proceedings and also to simplify it; and also in order to avoid unnecessary applications and attempts to recall and re-opening, etc. But it is also relevant to observe that the applications to be filed for recalling and re-opening, etc. are to be examined and, if at all, the provisions enable the parties to so file an application and if it has proved the compelling reasons for filing such an application of recalling and re-opening, it is further learned Judge to allow or reject such application, by exercising the discretionary power and the provisions of law in the facts and circumstances of the case. Here, the learned Judge of the trial Court has passed an order on 22nd April 2014 in which it is recorded that "Advocate for plaintiff present; prayer for time to file objections has been rejected and objection for IA.VII and IA.VIII is taken as not filed." Thereafter IAs.VII and VIII have been allowed subject to payment of cost of Rs. 500/-. The learned counsel for the respondent submits that the order of the trial Judge is a speaking order. When an order is to be passed on any application under the Code of Civil Procedure, the learned Judge has to assign fullest reasons. The party aggrieved has got a right of reason and not assigning any reasons is dereliction of duty. Though this is a ground to interfere in the order of the learned Judge, but in the facts and circumstances of the case, without expressing any opinion on the merits, I decline to interfere. In my considered opinion, a direction to the learned Trial Judge to dispose of the matter as expeditiously as possible but in any event not later than six months from the date of receipt of this order would suffice. It is also made clear that without there being any failure, the defendant is directed to cross-examine PW1 on the next date of hearing. If any prayer is made for adjournment, the same shall be rejected by the learned Judge.

Subject to the observation made above, the petitions stand disposed of.