Madras High Court
Mr.P.K.Madeswaran vs Mr.T.S.Sivakumar on 14 March, 2011
Author: K.Mohan Ram
Bench: K.Mohan Ram
In the High Court of Judicature at Madras Dated : 14.3.2011 Coram : The Honourable Mr.Justice K.MOHAN RAM CIVIL REVISION PETITION (NPD) Nos.758 & 758 of 2010 & MP.NO.1 OF 2010 Mr.P.K.Madeswaran ...Petitioner Vs Mr.T.S.Sivakumar ...Respondent PETITIONS under Article 227 of The Constitution of India against the fair and decretal orders dated 28.10.2009 made respectively in IA.Nos.198 and 199 of 2009 in OS.NO.88 of 2006 on the file of the First Additional Subordinate Court, Gobichettipalayam, Erode District. For Petitioner : Mr.P.Thangavel For Respondent : Mr.N.Manokaran COMMON ORDER
The plaintiff in OS.NO.88 of 2006 on the file of the First Additional Subordinate Court, Gobichettipalayam, Erode District is the petitioner in the above civil revision petitions.
2. The plaintiff filed the said suit against the respondent herein for recovery of money on the basis of a promissory note said to have been executed by the respondent herein. After recording of evidence and at the time of arguments, the respondent herein filed two applications in IA. Nos.198 and 199 of 2009 to reopen and recall PW1 and PW2 on the ground that certain important questions were omitted to be asked by the petitioner herein in the cross examination of the witnesses.
3. The said applications were opposed by the petitioner herein by filing a counter affidavit. In the counter affidavit, it has been stated that PW1 and PW2 were cross examined five months earlier and these applications have been filed belatedly at the time of arguments just to drag on the proceedings and that in the affidavits, it has not been stated as to the nature of questions, which are omitted to be asked.
4. On a consideration of the materials available on record, the Court below allowed the said applications on the ground that if the said applications are allowed, no prejudice will be caused to the plaintiff/petitioner herein. Being aggrieved by that, the petitioner is before this Court.
5. Heard both.
6. Learned counsel for the petitioner submitted that in the affidavits filed in support of the said applications, the respondent has not stated as to the nature of questions to be asked in the cross examination and that the reasons recorded by the Court below for allowing the two applications cannot be sustained in the light of the decision in the case of Vadiraj Naggappa Vernekar Vs. Sharadchandra Prabhakar Gogate (reported in 2009 (4) SCC 410) wherein the Supreme Court has laid down as follows :
"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.
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."
7. Countering the said submissions, learned counsel for the respondent submitted that if the nature of questions to be asked in the cross examination of PW1 and PW2 is revealed in the affidavits, the very purpose of cross examination will be lost and that therefore, the contention of the learned counsel for the petitioner cannot be countenanced. Learned counsel further submitted that the decision relied upon by the learned counsel for the petitioner is not applicable to the facts of this case, since in that case, it was the plaintiff who filed the applications for reopening and recalling the witnesses and in that context, it has been observed by the Apex Court that all the facts were within the knowledge of the plaintiff and no ground has been made out as to why those evidence was not brought on record. But, in this case, the defendant is the petitioner and since the defendant's counsel failed to ask certain important questions, it has become necessary to recall the witnesses for further cross examination.
8. Learned counsel for the respondent has relied upon the decision rendered by P.Sathasivam,J (as he then was) in the case of Krishnaveni and Others Vs. Gopal Pandithar (reported in 2006 (5) CTC 394) wherein after the defendants' witness was cross examined, the plaintiff filed the applications to reopen and recall the defendants' witness to enable him to further cross examine such witnesses, as the plaintiff has failed to put vital questions. Since such applications have not been allowed, the same were challenged in the revisions. While considering the revisions, it has also been held that such applications are to be allowed if they are bona fide and not filed after delay.
9. I have considered the aforesaid submissions of the learned counsel on either side and perused the materials available on record.
10. It is not in dispute that the applications to reopen and recall the witnesses came to be filed at the stage of arguments and five months after PW1 and PW2 were cross examined. In the affidavits filed by the respondent, it has been stated that only at the time of arguments, he came to know that certain important questions have been omitted to be asked in the cross examination of PW1 and PW2. Except the said reason, no other reason has been stated.
11. The learned Single Judge, in the decision reported in 2006 (5) CTC 394 (cited supra), has held that if the case is reopened and the witnesses are recalled and the defendant is allowed to cross examine, no prejudice will be caused to the plaintiff/petitioner herein. In the decision reported in 2009 (4) SCC 410 (cited supra), the Apex Court has categorically laid down that under Order XVIII Rule 17 of the Civil Procedure Code, the Court can exercise its discretion either on its own motion or on an application filed by any of the parties to the suit, but 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. Following the earlier decisions, the Apex Court clearly laid down that the power under the provisions of Order XVIII Rule 17 of the Civil Procedure Code 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. The Apex Court further held that that is not the scheme or intention of Order XVIII Rule 17 of the Civil Procedure Code. The reason recorded by the Court below is quite contrary to the aforesaid law laid down by the Apex Court and therefore, the same cannot be sustained.
12. In the light of the aforesaid decision of the Apex Court and in view of the fact that the reason recorded by the Court below is contrary to the law laid down by the Apex Court, this Court is unable to follow the decision reported in 2006 (5) CTC 394 (cited supra). It has to be further pointed out that in the affidavits filed by the respondent herein, it has not been stated that there are ambiguities in the evidence of PW1 and PW2, which require clarification. Therefore, this Court is unable to sustain the orders passed by the Court below.
13. For the aforesaid reasons, the orders passed by the Court below dated 28.10.2009 are set aside and the civil revision petitions are allowed. No costs. Consequently, the above MP is closed.
To The First Additional Subordinate Court, Gobichettipalayam, Erode District RS