S. Kannappan vs J. Ramanathan and J. Muthusubramanian

R.S. Ramanathan, J.—Heard both sides

The Defendant in O.S. No. 23 of 2005, on the file of the Sub Court, Devakottai, is the revision Petitioner.

The Respondents filed the suit O.S. No. 23 of 2005, on the file of the Sub Court, Devakottai, for declaration that the suit property belongs to

them and for recovery of possession of the same from the Defendant and for mesne profit.

The revision Petitioner contented that the Plaintiffs are not entitled to the relief as prayed for and they are not the owners of the property. During

the trial, the Respondents/plaintiffs examined four witnesses and their evidence was closed and the case was posted for the examination of the

Defendants side. At that time, the Plaintiffs filed application I.A. No. 418 of 2009 for reopening the Plaintiffs'' side evidence for recalling P.W.4 for

marking certain documents and also filed I.A. No. 419 of 2009 to recall PW4. In the affidavit, it was stated that certain documents were made

available only after the examination of the witnesses were over and those documents are necessary to prove the case of the Plaintiffs and those

documents are required to be marked through P.W.4 and for that purpose, P.W.4 has to be recalled and examined.

The revision Petitioner/defendant filed a counter stating that the application was filed to drag on the proceedings and no valid reason has been

stated in the application and also no details were mentioned and therefore, these applications are not maintainable and are liable to be dismissed.

The learned Sub Judge after appreciating of the facts law on that aspect, allowed the applications and against the same, these civil revision petitions

are filed.

It is contended by Mr. R.Sundar Srinivasan, the learned Counsel appearing for the revision Petitioner that after the examination of the Plaintiffs''

side witnesses were over, the case was posted for the examination of the Defendants side witnesses and with a view to drag on the proceedings,

these applications were filed and hence, the Court should not have allowed the applications and the applications are filed only to drag on the

proceedings.

The learned Senior counsel appearing for the Respondent submitted that under Order 18 Order 17 Code of Civil Procedure, the Court has got

power to recall a witness at any point time and the lower Court has correctly exercised its discretion and therefore, the orders of the lower Court

cannot be interfered with.

The learned Senior counsel further submitted that there was no delay on the part of the Respondents and immediately after the evidence was

closed, these applications were filed and sufficient reasons were stated for filing the applications and the lower Court properly appreciated these

facts and allowed the applications.

I have given my anxious consideration to the submission made by both counsels.

In my opinion, there is no need to interfere with the orders of the Court below. In the application to recall P.W.4, it has been stated that certain

documents came into possession of the Plaintiffs/Respondents after the examination of the witnesses were over and the for the purpose of marking

those documents, P.W.4 has to be recalled and for that purpose, the case has to be reopened. Further, it is not disputed that immediately after the

evidence on the Plaintiff''s side was over, the applications were filed to reopen and recall P.W.4. In the counter filed by the revision Petitioner, it

has not been stated how the Petitioner would be prejudiced by recalling P.W.4 and the only reason that was urged before the lower Court and this

Court was that the Plaintiffs with an intention of dragging on the proceedings, these applications are filed.

Considering the facts of the case, I am not in agreement with the contention of the learned Counsel appearing for the revision Petitioner. As per

Order 18 Rule 17 Code of Civil Procedure, the Court has got power to recall witness at any time and in this case, no prejudice will be caused to

the revision Petitioner, by allowing PW4 to be examined and the revision Petitioner will have the right of cross examination the witness and also

adduce evidence on their side to refute the evidence given by P.W.4.

Further, the Honourable Supreme Court held in the judgment reported in 2009-5-L.W.52, in the case of Vadiraj Naggappa Vernekar(d)

Through Lrs. v. Sharad Chand Prabhakar Gogate, that ""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 herein above,

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.

Further, in the judgment reported in S.S.S. Durai Pandian Vs. S.A. Samuthira Pandian, ], this Court has held that under Order 18 Rule 17

Code of Civil Procedure, the Court could not only recall a witness on its own but also on an application made by the parties. Therefore,

considering the scope of Order 18 Rule 17 Code of Civil Procedure, witness can be recalled for the purpose of settling the controversy between

the parties and no prejudice will be cased to the Defendant by allowing the application.

Hence, the lower court has correctly exercised the discretion and therefore, I do not find any infirmity to interfere with the order of the lower

court. Accordingly both the civil revision petitions are dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.