S. Duraisamy, K.S. Gopalakrishnan and Kannammal vs Nallappagounder and Others

M. Jaichandren , J.—This Civil Revision Petition has been filed against the fair and decretal order, dated 2.3.2010, made in I.A. No. 159 of

2010, in O.S. No. 391 of 2004, on the file of the Principal Subordinate Court, Erode.

The petitioners had filed the suit, in O.S. No. 391 of 2004, for a decree directing division of the suit properties into three equal shares, by metes

and bounds and to allot one such share to the plaintiffs and the fifth defendant, jointly and to put them in separate possession of the said properties

and for other consequential reliefs, including the relief of permanent injunction against the respondents.

The petitioners had also filed an interlocutory application, in I.A. No. 159 of 2010, praying that the trial Court may be pleased to pass an order

recalling P.W. 1 for the purpose of re-examination. In the said application filed by the petitioners it had been stated that the second petitioner, who

is the second plaintiff in the suit, had been examined as P.W. 1. Subsequently, he had filed a reply statement, upon which additional issues had

been framed. An additional proof affidavit had also been filed. He had also been cross examined. During the course of the cross examination a

question had been put to him as if he had not read the contents of the reply statement. The second petitioner had also admitted that he had not read

the reply statement since the pleadings were in English. However, he had admitted that his counsel had read over the matter to him and therefore,

the contents were well known to him. Thus, an ambiguity had arisen in the statements made by the second petitioner. In such circumstances, after

the cross examination, the counsel for the petitioners had sought permission for his re-examination, in respect of the statements made with regard to

the contents of the reply statement. Since, the request was objected to by the respondents, the second petitioner was not in a position to clarify the

ambiguity caused in the statements made by him, by way of an explanation. In such circumstances, an interlocutory application had been filed

praying to recall P.W. 1, for re-examination.

The trial Court, by its order, dated 2.3.2010, had rejected the request made by the petitioners. While dismissing the interlocutory application

filed on behalf of the petitioners, the trial Court had stated that the said application had been filed after the witnesses had been examined and the

suit had been listed for arguments. The petitioners, by filing various interlocutory applications before the trial Court and by filing a civil revision

petition before this Court had been employing delay tactics to prolong the proceedings in the suit. It had also been stated that the Court may, at

any stage of a suit, recall any witness, who had been examined and may put such questions to him, as it thinks fit, subject to the law of evidence,

which is in force. However, it is not open to the petitioners to recall or re-examine P.W. 1, without sufficient cause being shown. When P.W. 1

had already been cross-examined an application had been filed to recall and to re-examine him. After such re-examination the petitioners have,

once again, made a request by filing the interlocutory application in I.A. No. 159 of 2010, to recall and re-examine him, belatedly. At this stage,

when the additional proof affidavit had been filed and when the issues had already been dealt with therein, there is no proper reason shown by the

petitioners to recall and re-examine P.W. 1, as prayed for in the interlocutory application.

The learned Counsel appearing on behalf of the petitioners had stated that the trial Court had failed to note that the purpose of recalling P.W. 1

is to clarify the ambiguity created by the respondents in the cross examination of P.W. 1 and it is not to fill up the lacuna in the evidence. The trial

Court had also failed to note that there was no necessity for the parties to the suit to read their pleadings, which are in English since, the counsels

appearing on behalf of the parties concerned would take care of the proceedings in the suit. The trial Court had failed to note that Order XVIII

Rule 17 of the Civil Procedure Code, 1908, could be invoked, at any time, in order to clarify an ambiguity arising during the cross examination.

Therefore, the order of the trial Court, dated 2.3.2010, dismissing the interlocutory application filed by the petitioners, is bad in law.

The learned Counsel had also submitted that no new facts would be introduced during the re-examination of P.W. 1. The purpose of re-calling

P.W. 1, for re-examination, is only to clarify the ambiguity, which had cropped up during his cross examination. In view of Sections 137 and 138

of the Indian Evidence Act, 1872, read along with Order XVIII Rule 17 of the Civil Procedure Code, 1908, the trial Court ought to have allowed

the interlocutory application filed by the petitioners, in I.A. No. 159 of 2010.

The learned Counsel appearing on behalf of the petitioner had relied on a decision of the Supreme Court, in Vadiraj Naggapa Vernekar (D)

Through Lrs. Vs. Sharad Chand Prabhakar Gogate, , wherein it had been held that the court may recall a witness, either on its own motion or on

an application filed by a party to the suit, under Order XVIII Rule 17 of the Civil Procedure Code, 1908, if the evidence, on re-examination of the

witness, would have a bearing on the ultimate decision of the suit.

The learned Counsel appearing on behalf of the respondents had submitted that the petitioners had filed the interlocutory applications, to recall

and re-examine P.W. 1, with the mala fide intention of delaying the proceedings in the suit, in O.S. No. 391 of 2004, unnecessarily. In an earlier

interlocutory application filed by the petitioners P.W. 1 had been recalled and re-examined. While so, it is not open to the petitioners to file another

interlocutory application for a similar relief. The learned Counsel for the respondent had relied on the decision of this Court, made in V.

Shanmugam Vs. S. Umamaheswaran, , wherein it had been held that the power of the court, under Order XVIII Rule 17 of the Civil Procedure

Code, 1908, is to be exercised only in exceptional circumstances. Unless the trial Court had given reasons, which can be described as moon shine,

flimsy or irrational, the rejection of the request to recall and re-examine witnesses cannot be said to be a non-judicial approach, warranting

interference in revision.

In view of the averments made on behalf of the petitioners, as well as the respondents, and on a perusal of the records available, and in view of

the decisions cited above, this Court finds it appropriate to hold that the petitioners have not shown sufficient cause or reason to grant the reliefs, as

prayed for in the interlocutory application, in I.A. No. 159 of 2010. The order of the trial Court, dated 2.3.2010, made in I.A. No. 159 of 2010,

in O.S. No. 391 of 2004, cannot be held to be erroneous, illegal, or invalid. The trial Court had rightly come to the conclusion that the request

made by the petitioners, to recall and re-examine P.W. 1, is devoid of merits. The trial Court had noted that the petitioner had filed the

interlocutory application only for the purpose of delaying the proceedings in the suit, in O.S. No. 391 of 2004. Even though the Court concerned

would have the power to recall a witness, under Order XVIII Rule 17 of the Civil Procedure Code, 1908, such a power would be exercised only

in exceptional cases, where it is warranted. However, in the present case no such necessity had arisen for the trial Court to permit the petitioners to

recall and re-examine P.W.1, as prayed for in the interlocutory application, in I.A. No. 159 of 2010. In such circumstances, it is found that the civil

revision petition filed by the petitioners is devoid of merits. Hence, it is dismissed. No costs. Consequently, connected miscellaneous petition is

closed.