S. Chokkalingam vs Smt. Pittammal and Others

S. Palanivelu, J.—The petitioner has preferred these Civil Revision Petitions against the order dated 15.02.2012 passed by the learned

District Munsif, Virudhunagar in I.A. Nos. 82 and 83 of 2012 in O.S. No. 151 of 2008. The petitioner herein is the Plaintiff, who filed O.S. No.

151 of 2008 on the file of the District Munsif, Virudhunagar for cancellation of the Sale Deed dated 20.03.2007 as for the third item of the suit

property and for permanent injunction.

Before the Trial Court, when the evidence was over and the arguments of the plaintiff was also heard and when the case was posted for hearing

the arguments of the defendants, the respondents herein filed two applications in I.A. Nos. 82 and 83 of 2012 in O.S. No. 151 of 2008, one for

re-opening the case for the purpose of producing additional documents and to examine the relevant witnesses and another one for recalling D.W.4.

In the Affidavit in I.A. No. 82 of 2012 in O.S. No. 151 of 2008, the first respondent herein has stated that in order to show that the suit third

item is in possession of the fourth defendant, he has to be examined as a witness. In I.A. No. 450 of 2008 filed for interim injunction, the document

filed on behalf of the defendants is the Settlement Deed dated 30.11.1948, however, the same was omitted to be marked before the Trial Court.

Further, in Ex.A.1 - Will alleged to have been executed by the Plaintiff, one Sundaramurthy Reddiyar was the Attestor, who has to be examined

on behalf of the defendants. Moreover, D.W.4 has to be examined with regard to Settlement deed dated 30.11.1948.

The plaintiff cut the leg of his father Sundaramuthy Reddiyar and he was convicted. He filed an Appeal and has been released on bail. In these

circumstances, there may be danger for their life at the hands of the plaintiff. Hence, the first respondent herein prayed to re-open the case for the

purpose of producing additional documents and to examine the relevant witnesses and for recalling D.W.4.

In the counter filed by the plaintiff, it is stated that the fourth defendant is remaining exparte and therefore, there is no necessity to examine the

witness. The first attester Sundaramoorthy is the husband of the first defendant and they are living under the same roof and without examining him

during trial, now the application has been filed, which is unsustainable in law. Only to fill up the lacuna after the advancement of the arguments by

the other side, these applications have been filed, which is abuse of process of law. The petitioner is not bona fide and coming with the applications

with all ulterior and mala fide motive and therefore the petitions are liable to be dismissed.

After hearing both sides, the learned District Munsif, Virudhunagar allowed both the applications. Aggrieved by the same, the petitioner has

approached this Court with these Civil Revision Petitions.

The points for consideration is as to whether the first defendant/first respondent herein has to be permitted to re-open the case and to recall the

witness D.W.4?

Point:-

Mr. N. Dilip Kumar, learned counsel for the petitioner has submitted that in as much as there was ample opportunity to the first respondent/first

defendant to examine her husband Sundaramoorthy at the time of Trial, she has not chosen to do so. Now, it is not open to her to fill up the lacuna

in the evidence, which has become beneficial to the Plaintiff. The Plaintiff has already examined one of the Attestors to a Will, which is relied upon

by him and it is sufficient to satisfy the requirements of law. After hearing the arguments, the applications have been filed at the belated stage, so

that both the applications are to be dismissed. He has further submitted that it is well settled law that the parties could not be allowed or be

permitted to fill up the lacuna nor set right omissions which have been wilfully made during the trial proceedings. If the other side has got any right

accrued to them, he could not be deprived of the said right and that there is no bona fide intention on the part of the respondents.

Mr. G. Mariyappan, learned counsel for the respondents submitted that even though it is the duty of the plaintiff to examine the Attestor

Sundaramoorthy, he was not examined. Now, the first respondent/first defendant seeks to examine him, which would throw light on the facts of the

case and for that, it is necessary to re-open the case and to recall the witness. He has further submitted that no valid ground is made out to interfere

with the order of the Court below.

In support of his contentions, the learned counsel for the petitioner would place reliance on the decision of the Hon''ble Supreme Court in

Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, wherein the Hon''ble Supreme Court has observed that

Order 18 Rule 17 C.P.C. is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. Their

Lordships have elaborately dealt with the scope of Order 18 Rule 17 C.P.C and also formulated guidelines to be observed. The operative portion

of the Judgment reads 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. 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. Of

course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial

court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There

is nothing to indicate that such is the situation in the present case. 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.

In K.K. Velusamy Vs. N. Palanisamy, , the Hon''ble Supreme Court has held that where the application is found to be bona fide and where

the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the

Court is satisfied that non-production earlier was for valid and sufficient reasons, the Court may exercise its discretion to recall the witnesses or

permit fresh evidence. The relevant passage in the Judgment reads as under:-

We may add a word of caution. The power u/s 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the

asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be

bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in

rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to

recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court

should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case

within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up

negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court

finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for

awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such

evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the

application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic

record, the court may also listen to the recording before granting or rejecting the application.

This Court is to find out whether there is bona fide on the part of the respondents. It is known and admitted fact that the plaintiff is inimically

disposed of his father Sundaramoothy on account of his alleged assault on him and a criminal case was registered and he was convicted. The

plaintiff preferred an Appeal and the same is pending and he was enlarged on bail. Knowing fully well the animosity, the first defendant/first

respondent is making attempt to examine him by filing the applications to re-open the case and to examine him. This Court is of the considered

opinion that it is not permissible under law.

During the arguments of the case, this Court was informed that the said Sundaramoorthy was examined on behalf of the respondents before the

Trial Court after the order in the applications to re-open and recall the witness was passed viz., during the pendency of the Civil Revision Petitions

before this Court.

The conduct of the respondents in this case is against the law and principles laid down by the Hon''ble Supreme Court. The respondents are

not permitted to fill up the lacuna in the evidence of the witnesses, which has already been recorded. Now, the evidence of Sundaramoorthy, the

father of the plaintiff/revision petitioner is on record. When it is admitted that there is animosity between the father and son, there is no justification

for the evidence of Sundaramoorthy to continue on record.

In view of the principles laid down by the Hon''ble Supreme Court, the evidence of Sundaramoorthy has to be struck off from the records. In

such view of the matter, both the Civil Revision Petitions are to be allowed. In fine, these Civil Revision Petitions are allowed and the order dated

15.02.2012 passed by the learned District Munsif, Virudhunagar in I.A. Nos. 82 and 83 of 2012 in O.S. No. 151 of 2008 is set aside. The

evidence of Sundaramoorthy shall be eschewed by the Court below. However, there will be no order as to costs. Consequently, the connected

M.P.(MD) Nos. 1 and 1 of 2012 are closed.