Subrata Banerjee vs Pannalal Pal & Others

Soumen Sen, J.—This revisional application is directed against an order dated September 17, 2015 passed by the learned Civil Judge (Junior Division), Third Court, Serampore, Hooghly in Title Suit No. 135 of 1996 by which an application under Order 18, Rule 17 of the Code of Civil Procedure filed by the plaintiff is rejected.

The evidence of PW-1 had commenced on March 20, 2007 and concluded on February 13, 2009. Thereafter, the evidence of the defendants'' witnesses was concluded. The suit was fixed for argument on February 1, 2013 and the said suit is at the argument stage. At the fag end of the trial and after arguments have commenced, an application filed on September 3, 2015 for recalling of PW-1 on a plea that the plaintiff would be required to produce some documents which are in possession of the plaintiff but at the time of adducing evidence the plaintiff could not file the same before the Trial Court since those documents were misplaced from the custody of the plaintiff. It is curious to note that after six years those documents suddenly surfaced and the plaintiff felt it necessary to produce such documents for proving the case of the plaintiff.

Neither the nature of the documents nor any explanation was offered for not being able to disclose those documents during the aforesaid period. It took six long years for the plaintiff to come out with an application, which is completely vague and bereft of particulars inasmuch as after an inordinate delay. Still then the plaintiff would invite this Court to exercise its high prerogative power and would cite decision of the Hon''ble Supreme Court rendered in connection with Order 18, Rule 17 and Section 151 of the Code of Civil Procedure to persuade this Court to allow the plaintiff to lead evidence on such undisclosed documents.

Ms. Reshmi Ghosh, the learned Advocate appearing on behalf of the plaintiff/petitioner referred to paragraphs 9 and 12 of the judgement of the Hon''ble Supreme Court in the case of K.K. Velusamy v. N. Palanisamy reported in (2011) 11 SCC 275 and submits that this Court has inherent power to recall any witness who has been examined in order to do substantive justice.

In K.K. Velusamy (supra) in the same paragraphs, the Supreme Court made a note of caution. It was observed that the power is discretionary and should be used sparingly in appropriate cases to enable the Court to clarify any doubts, it may be with regard to the evidence led by the parties. The said power, meaning thereby the power under Order 18, Rule 17 of the Code, not intended to be used to fill up omissions in the evidence of the witness who has already examined. The discussion on Section 151 of the code was made in the light of deletion of Order 18, Rule 17A of the Code by the 1999 Amendment of CPC, which took effect from July 1, 2002.

The Hon''ble Supreme Court observed that notwithstanding the deletion of the said provision, the Court in the situation contemplated in paragraph 12, may exercise its power and allow the plaintiff to produce additional evidence. In paragraph 14 of the K.K. Velusamy (supra), the Hon''ble Supreme Court observed that the amended provision of the Code contemplates and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for reopening the evidence to examinee a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands on earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the Court may in exercise of its inherent power under Section 151 of the Code permit the production of such evidence it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.

On the basis of the averments made in the said petition, this Court is unable to arrive at any finding that the documents which have not surfaced would be either relevant or could not be produced at the relevant point of time or there was any mention or reference of such documents during evidence. The plaintiff in order to avail the said opportunity has to satisfy and meet those requirements.

The learned Counsel appearing on behalf of the opposite party no. 1 has referred to a recent decision of the Hon''ble Supreme Court in the case of Bagai Construction v. Gupta Building Material Store reported in (2013) 14 SCC 1 which deals with Order 18, Rule 17 of the Code of Civil Procedure and submits that K.K. Velusamy (supra) was considered in Bagai Construction (supra) in paragraph 11. It is submitted that inasmuch the plaintiff has disclosed the documents on which the plaintiff wants to rely and having regard to the fact that at the argument stage recalling of the witness by the plaintiff would adversely prejudice the right of the defendant in the suit, the said application was rightly rejected by the Trial Court.

K.K. Velusamy (supra) was considered in paragraphs 11 and 12 of the judgement rendered in Bagai Construction (supra) which reads:-

In Velusamy even after considering the principles laid down in Vadiraj Naggappa Vernekar and taking note of Section 151 CPC, this Court concluded that: (K.K. Veluswamy ,SCC p. 286, para 22)

"22. ��in the interest of justice and to prevent abuse of the process of the court, the trial court (is free to consider) whether it was necessary to reopen the evidence and if so, in what manner and to what extent�.."

Further, it observed that the evidence should be permitted in exercise of its power under Section 151 of the Code. The following principles laid down in that case are relevant: K.K. Veluswamy, SCC p. 285, para 19)

"19. We may add a word of caution. The power under Section 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.

As observed earlier, the Court has to satisfy that in spite of due diligence the plaintiff was unable to produce such documents and the plaintiff cannot be allowed to have the benefit of recall of witness under the garb of which they can reopen witness.

Under such circumstances, this revisional application stands dismissed. No order as to costs.