Punjab-Haryana High Court
Sikander Singh Maluka vs . Gurpreet Singh Kangar on 24 February, 2010
C.M. No. 22-E of 2009 in E.P. No. 12 of 2007
Sikander Singh Maluka Vs. Gurpreet Singh Kangar
-1-
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
C.M. No. 22-E of 2009
in E.P. No. 12 of 2007
Date of Decision : February 24, 2010
Sikander Singh Maluka
.......... Applicant /petitioner
Versus
Gurpreet Singh Kangar
...... Non-applicant / respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Bhoop Singh, Advocate
for the applicant / petitioner.
Mr.S.K. Garg Narwana, Advocate
for the non-applicant / respondent.
****
VINOD K. SHARMA, J.
This application under Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure has been moved for recalling Sh. Harpreet Singh s/o Sh. A.S. Uppal, Director, Elevations Advertising Private Ltd., S.C.O. No. 2909-2910, Sector 22-C, Chandigarh.
It is pleaded in the application, that the petitioner had summoned Sh. Harpreet Singh s/o Sh. A.S. Uppal along with the bills raised on the Punjab Pardesh Congress Committee (for short 'P.P.C.C.') for publishing advertisements during the election. He was examined as PW22 on 22.7.2009.
The witness produced four bills, which were exhibited as Ex.PW22/1 to Ex.PW22/4. The bills exhibited were not the original bills but C.M. No. 22-E of 2009 in E.P. No. 12 of 2007 Sikander Singh Maluka Vs. Gurpreet Singh Kangar -2- the photo copies. It is also pleaded, that thereafter the petitioner summoned original bills from the office of P.P.C.C. Sector 15, Chandigarh, which were produced in this Court on 4.12.2009. The case set up in the application is that the original bills were required to be proved as these were essential for just and proper decision of the case, therefore, it is necessary to recall PW- 22 for further examination.
Though, no reply has been filed to the application the application is strongly opposed by the learned counsel appearing on behalf of the respondent.
Mr. Bhoop Singh, learned counsel appearing on behalf of the petitioner in support of the application contended, that recalling of PW22 is necessary, as he had failed to produce the original bills while appearing as witness by taking a stand that the original bills were sent to the P.P.C.C. The original bills, therefore, were summoned and are on record of the Court. It, therefore, becomes necessary to recall the witness to prove the original bills.
In support of this contention the learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Balraj Sharma Vs. Jagir Kaur 1990(1) Rrent Law Reporter 28, wherein this Court allowed recalling of the witnesses on the ground, that the documents which were required to be confronted to the witnesses came to the knowledge of the counsel subsequently.
The learned counsel for the petitioner also placed reliance on the judgment of the Hon'ble Andhra Pradesh High Court in the case of Sultan Saleh Bin Omer V. Vijayachand Sirimal AIR 1966 Andhra C.M. No. 22-E of 2009 in E.P. No. 12 of 2007 Sikander Singh Maluka Vs. Gurpreet Singh Kangar -3- Pradesh 295, wherein the Hon'ble Andhra Pradesh High Court was pleased to lay down, that though, it is the Court which can suo motu or at the instance of party recall witness and put questions to him but an opportunity to a party to recall witness for examination, cross-examination or re- examination is not covered under Order 18 Rule 17 of the Code of Civil Procedure, but if the circumstances so warrant, the Court can grant such opportunity under Section 151 of the Code of Civil Procedure.
The contention of the learned counsel for the petitioner therefore was that the petitioner be allowed to re-examine PW-22.
The application is opposed by the learned counsel appearing on behalf of the respondent, by placing reliance on the judgment of the Hon'ble Bombay High Court in the case of Steelage Industries Limited and Anr. Vs. Smt. Chander Bagai AIR 1992 Bombay 406, wherein the Hon'ble Bombay High Court has been pleased to lay down, that the specific provisions of the Code of Civil Procedure cannot be bypassed or circumvented by having resort to Section 151 of the Code of Civil Procedure, for the purpose of re-conducting the examination-in-chief, as this would not only be contrary to the specific provisions, but also to the provisions of the Evidence Act. The Hon'ble Andhra Pradesh High Court in the case of Allumalla Kannam Naidu Vs. Smt. Allumalla Simhachalam AIR 2003 Andhra Pradesh 239, was pleased to lay down, that witness cannot be recalled merely on a bald statement that some crucial question could not be put to the witness.
Again in the case of Botsa Appala Narasayya Vs. Smt. Raghunanda Lakshmi and others AIR 2004 Andhra Pradesh 82, the C.M. No. 22-E of 2009 in E.P. No. 12 of 2007 Sikander Singh Maluka Vs. Gurpreet Singh Kangar -4- Hon'ble Andhra Pradesh High Court has been pleased to lay down, that a witness cannot be recalled on the plea, that the petitioner could not instruct his counsel properly on the date of examination of said witness.
The learned counsel for the respondent also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Vadiraj Naggappa Vernekar (D) through LRs. Vs. Sharad Chand Prabhakar Gogate 2009(1) RCR 502, to contend that when no new facts were discovered subsequently, the permission to re-examine the witness cannot be allowed. The Hon'ble Supreme Court in the case of Vadiraj Naggappa Vernekar (D) through LRs. Vs. Sharad Chand Prabhakar Gogate (supra) has been pleased to lay down as under :-
" 16. 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 C.M. No. 22-E of 2009 in E.P. No. 12 of 2007 Sikander Singh Maluka Vs. Gurpreet Singh Kangar -5- 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 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.
17. 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 C.M. No. 22-E of 2009 in E.P. No. 12 of 2007 Sikander Singh Maluka Vs. Gurpreet Singh Kangar -6- 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."
The contention of the learned counsel for the respondent, therefore, was that in this case it cannot be believed that the petitioner was not aware of the fact, that the original bills would be with the party on whom those were raised. No subsequent event, therefore, has taken place which entitled the recall of the witness.
On consideration, I find force in the contentions raised by the learned counsel for the respondent. It would be noticed, that under Order 18 Rule 17 of the Code of Civil Procedure, the Court has power to recall the witness suo motu, and put any question to the said witness. This power can also be exercised on an application made by the parties, but the discretion is to be exercised sparingly and only in exceptional cases, as held by the Hon'ble Supreme Court.
The reading of the statement of PW-22 would show, that the objection to the bills being exhibited was taken in the examination-in-chief, on the ground of mode of proof and being inadmissible in evidence. In spite of this, the learned counsel for the petitioner did not get the further examination deferred, to summon the original bills, but allowed the witness to be cross-examined and discharged.
C.M. No. 22-E of 2009 in E.P. No. 12 of 2007 Sikander Singh Maluka Vs. Gurpreet Singh Kangar -7- The application also does not make out any special case for recalling the witness, as in spite of the specific stand taken by the witness, that the original bills were with the Punjab Pardesh Congress Committee, the petitioner took no steps to get deferred the examination of the witness but completed the examination-in-chief, thereafter cross-examination was also concluded and the witness was discharged. Merely because an objection is raised to the document being exhibited, cannot be a ground to recall the witness, as contended by the learned counsel for the petitioner.
The contentions raised by the learned counsel for the petitioner do not make out any exceptional case to recall the witness, as the object of the application is only to fill up lacuna in the evidence, which is not permissible.
No merit.
Dismissed.
February 24, 2010 ( VINOD K. SHARMA ) 'sp' JUDGE