S. Ramasamy vs Perumal

R. Mala, J.—The present Civil Revision Petition has been filed challenging the fair and decreetal Order dated 14.6.2013 made in I.A. No. 332 of 2013 in O.S. No. 646 of 2005 on the file of the learned Additional District Munsif, Namakkal. The Revision Petitioner as Plaintiff has filed the Suit in O.S. No. 646 of 2005 for partition and separate possession of his share in the property and also for other consequential reliefs. After the filing of the Written Statement and after framing the issues, the evidence on the side of the Plaintiff was closed and the Defendants-DW 1 to DW 4 were examined. At that juncture, the Defendants came forward with an Application in I.A. No. 332 of 2013 to recall PW 1 & PW 2 for further cross-examination on their behalf. In the said Application, the Petitioner herein filed a detailed Counter Affidavit. The learned Trial Judge after considering the arguments advanced by both sides, allowed the Application, against which the present Civil Revision Petition has been preferred.

Challenging the impugned Order, the learned Counsel for the Petitioner would submit that the Suit was filed in the year 2005. After framing the issues, the trial commenced on 2.1.2012 and the evidence on the side of the Plaintiff was closed on 30.8.2012 and the matter was posted for evidence on the side of the Defendants on 4.9.2012. The Defendants-DW 1 to DW 4 were examined on 10.12.2012. For further examination of DW 4, the matter was posted on 13.12.2012. At that juncture, the Defendants came forward with the Application in I.A. No. 332 of 2013 to recall PW 1 & PW 2 for further cross-examination, which clearly shows that to fill up the lacuna, the Defendants had come forward the said Application. The said factum has not been considered by the Trial Court, while allowing the Application, even though the Petitioner herein raised the plea that without filing the Application to re-open the case, the Application to re-open the evidence is not maintainable. Further, the Trial Court in its Order has also held that it is not necessary to give particulars in respect of what documents, the Defendants wanted to cross-examine PW 1 & PW 2 and that it is obligatory on the part of the Defendants to file a reopen Petition as well as a Petition to recall the witnesses at the stage of closing their evidence. It was also held that the procedure is only a handmaid of justice and in the interest of justice, it is inclined to give one more opportunity to the Defendants, which is against the law.

The learned Counsel for the Petitioner further submitted that only with a view to fill up the lacuna, the Defendants had come forward with the said Application and the Court cannot permit the parties to the proceedings to file an Application to recall the witnesses belatedly, to fill up the gaps in his evidence. To substantiate his argument, the learned Counsel for the Petitioner relied upon the following decisions:

(i) Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, ;

(ii) Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, ;

and prayed for allowing of the Civil Revision Petition.

Resisting the same, the learned Counsel for the Respondent would submit that the without filing an Application to re-open the case, the Application to recall the Witnesses is maintainable. The Trial Court has considered this aspect in proper perspective and has rightly allowed the Application. To substantiate his argument, he relied upon the decision reported in V.I. Yocoob Vs. Big Mosque, , and prayed for the dismissal of the Civil Revision Petition.

Considered the rival submissions made by both sides and perused the entire materials available on record.

The admitted facts are that the Petitioner herein as Plaintiff has filed the Suit for partition. After contest, the evidence on the side of the Plaintiff commenced on 2.1.2012. On the said date, PW 1/Ramasamy was examined on Proof Affidavit and Ex. A1 to Ex. A7 were marked and the matter was posted on 4.1.2012 for cross-examination. But the cross-examination of PW 1 commenced only on 24.7.2012 and completed on 31.7.2012. Thereafter, PW 2/Subramani was examined on 23.8.2012 and cross-examined on 28.8.2012 and the matter was adjourned to 30.8.2012, for further evidence on the side of the Plaintiff. However, on 30.8.2012, the evidence on the side of the Plaintiff was closed and the matter was posted for evidence on the side of the Defendants on 4.9.2012. The evidence of DW 1 commenced on 14.9.2012 and on 10.12.2012, one Sengali was examined in chief and cross, as DW 3. On the same date, another Witness one Kannan was examined in chief as well as cross-examined as DW 4 and for further evidence, if any, the matter was posted on 13.12.2012.

Thereafter, on 13.12.2012 and 19.12.2012, the matter was adjourned and on 4.1.2013, the learned Counsel for the Defendants reports no instruction and the Defendants called absent and the matter was posted on 17.1.2013. On 17.1.2013, the learned Additional District Munsif was on Casual Leave and hence, the matter was posted on 5.2.2013. On 05.02.2013, one D. Srinivasan, Advocate filed change of Vakalath for the Defendants-D1 to D6 and at his request, the matter was adjourned to 18.2.2013. From 18.2.2013, for several hearings, viz., 18.2.2013, 22.2.2013, 5.3.2013, 12.3.2013, 19.3.2013, 25.3.2013, the matter was adjourned. Thereafter, the Defendants filed an Application in I.A. No. 332 of 2013, to recall PW 1 & PW 2.

The learned Counsel for the Petitioner would submits that the evidence has not been closed and hence, there is no need to re-open the case. The above argument does not hold good because in his Affidavit in I.A. No. 332 of 2013, it was clearly stated that "Today I am closing the evidence on our side." So the evidence of both sides has been closed. It is the duty of the Respondents herein to file a Petition to re-open the case. At this juncture, it is appropriate to consider the decision relied on by the learned Counsel for the Respondents.

In the decision reported in V.I. Yocoob Vs. Big Mosque, , relied on by the learned Counsel for the Respondent, it was stated that when the Suit was posted for Judgment, an Application was filed to re-open the case, so as to enable the Plaintiff therein to file impleading Application. But, it was held therein that there is no need to file Application to reopen the case and the Application to implead can be filed at any stage. Buy relying on the above decision, the learned Counsel for the Respondent would submit that the non-filing of the re-open Application will in no way affect the present case.

Now this Court has to decide whether there is any need to recall the witnesses PW 1 & PW 2?

As already stated, the evidence on the side of the Plaintiff was closed on 30.8.2012. But the Defendants kept quiet all along and nearly after six months, they filed an Application in I.A. No. 332 of 2013 to re-call the witnesses PW 1 & PW 2.

The learned Counsel for the Petitioner relied upon the decision of the Hon''ble Apex Court reported in Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, , wherein it was held that the provisions under Order 18, Rule 17, C.P.C. are not intended to be used to fill up omissions/gaps in the evidence of a witness, who has already been examined. 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 appropriate to incorporated Paragraph 16 of the said Judgment:

In our view, though the provisions of Order 18, Rule 17, C.P.C. 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 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, C.P.C. 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, C.P.C. 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, C.P.C.

Yet another decision relied on by the learned Counsel for the Petitioner was reported in Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, , wherein it was held that it is well settled that the power to recall any Witness under Order 18, Rule 17, can be exercised by this Court either on its own motion or on an Application filed by any of the parties to the Suit. However, 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. It is appropriate to incorporate the relevant portion in Paragraphs 8, 11 & 12 of the said Judgment:

In Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, , this Court had an occasion to consider similar claim, particularly, Application filed under Order 18, Rule 17, and held as under:

In our view, though the provisions of Order 18, Rule of 17, C.P.C. 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.

The power under the provisions of Order 18, Rule 17, C.P.C. 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, C.P.C.

It is now well settled that the power to recall any Witness under Order 18, Rule 17, C.P.C. 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.

Some of the principles akin to Order 47, C.P.C. may be applied when a party makes an Application under the provisions of Order 18, Rule 17, C.P.C., 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.

The perusal of the materials placed by the Plaintiff, which are intended to be marked as Bills have already been mentioned by the Plaintiff in its Statement of Account but the original Bills have not been placed on record by the Plaintiff till the date of filing of such Application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the Plaintiff but for the reasons known to it, still the Plaintiff has not placed these Bills on record. In such circumstance, as rightly observed by the Trial Court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of Judgment, we are of the view that the Plaintiff cannot be permitted to file such Applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the Trial Court, there is no acceptable reason or cause which has been shown by the Plaintiff as to why these documents were not placed on record by the Plaintiff during the entire trial. Unfortunately, the High Court taking note of the words "at any stage" occurring in Order 18, Rule 17, casually set aside the Order of the Trial Court, allowed those Applications and permitted the Plaintiff to place on record certain Bills and also granted permission to recall PW 1 to prove those Bills. Though power under Section 151, can be exercised if ends of justice so warrant and to prevent abuse of process of the Court and Court can exercise its discretion to permit reopening of evidence or recalling of Witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the Order of the Trial Court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 of CPC, the Plaintiff cannot be permitted.

After change of various provisions by way of amendment in the C.P.C., 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, C.P.C.

In the light of the above decisions, this Court has to consider the Affidavit filed by the Petitioner. In Paragraph 2 of the Affidavit, it was stated as follows:

2....... Today I am closing the evidence on our side. But at the time of cross-examination of PWs, some important questions were left without putting to them. I handed over some documents to our previous Counsel and instructed him to questions to those witnesses. But by mistake questions with regard to those documents were not asked to them........

It is pertinent to note that the Defendants have not filed any Application for condonation of delay in receiving the documents. It is also to be noted that the DW 1 to DW 4 were already examined. However, they have not given any details as to why the relevant documents were not produced before the witnesses were examined, why the documents were not marked and through them, the questions were not posed on the Witnesses. Mere seeking to recall the Witnesses cannot be a reason for allowing the same. But, it is a well settled dictum of the Hon''ble Apex Court, no Petition to recall can be allowed merely to fill up the lacunae in the evidence let in by them.

In the given case on hand, the above dictum of the Hon''ble Apex Court has not been considered by the Trial Court while dealing with the Application to recall the Witnesses. Even though the Revision Petitioner in his Counter-Affidavit to the Application in I.A. No. 332 of 2013, in Paragraph 6 has specifically stated, "The Petitioners are intending to fill up the lacunae and evidence in their evidence at the belated stage", the Trial Court has not considered the same in the impugned Order. The Trial Court has only mentioned about not giving the nature of the documents to be marked through the Witnesses and also the questions posted to them.

In such circumstances, I am of the view that the Trial Court has not considered the settled dictum laid down by the Hon''ble Apex Court while allowing the Petition to recall the Witnesses. The Court cannot permit the parties to fill up the lacunae in the evidence of the Witness which has already been recorded. Since this aspect was not considered, I am of the view that the Order of the Trial Court made in I.A. No. 332 of 2013 in O.S. No. 646 of 2005 is liable to be set aside and accordingly set aside. In fine, the Civil Revision Petition stands allowed. Consequently, connected Miscellaneous Petition is closed. No costs.