Rajasthan High Court - Jaipur
Pura Ram vs Addi District Judge (F T ) And Ors on 24 September, 2012
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.10420/2012 Pura Ram vs. Additional District Judge No.2 & Ors. Date of order : 24/09/2012. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ajay Gupta for the petitioner. Shri S.R. Saini for the respondents.
****** REPORTABLE This writ petition is directed against the order of Additional District Judge (Fast Track) No.2, Sikar Camp, Srimadhopur dated 26.05.2012.
The writ petition has been filed by defendant whereby said court rejected the application filed by him with the prayer that Nanu Ram, the plaintiff should be recalled for putting certain new questions to him.
Shri Ajay Gupta, learned counsel argued that the earlier counsel could not put relevant questions and after change of the counsel, the application was made. It is argued that the Court not only possess the power to recall any witness by recourse to provisions in Order 18 Rule 17 CPC, but in appropriate cases, it can also invoke inherent powers u/s.151 CPC. Learned counsel relied on the judgement of Supreme Court in K.K. Velusamy vs. N.Palanisamy-(2011) 11 SCC 275.
Shri S.R. Saini, learned counsel for the respondents opposed the writ petition and argued that after examination in chief of PW-3 Nanu Ram, he was subjected to cross examination also by counsel for the defendant. It was thereafter that the evidence of plaintiff was closed. Matter has thereafter remained pending for recording evidence of the defendant. For that purpose, the court granted opportunity to the defendant on 22.2.2012, 16.3.2012, 28.3.2012 and 5.4.2012. Learned counsel has relied on the judgement of this Court in Ashok Kumar vs. Pramod Kumar-2011 (3) DNJ (Raj.) 1016 and argued that this court in the aforesaid case has held that provisions of Order 18 Rule 17 CPC cannot be permitted to be invoked by scrupulous litigants to fill in their lacunaes.
As regards the judgement of Supreme Court in K.K. Velusamy, supra cited by counsel for petitioner, I am afraid that that judgement rather goes against him. The Supreme Court in the aforesaid judgement held that Order 18 Rule 17 enables the Court at any stage of the suit to recall any witness which has been examined subject to law of evidence and put such question as it may think. The power to recall under Order 18 Rule 17 can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any issue or doubt it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. It was held that Order 18 Rule 17 is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross examination or to place additional material or evidence which could not be produced when the evidence was being recorded by recalling any evidence either on the same day and on the request of any party so that the Court itself can put questions and elicit answers. Once a witness is recalled for the purpose of such clarification, it may, of course, permit the parties to assist it by putting some questions.
There is no specific provision in CPC enabling the parties to reopen the evidence for the purpose of further examination-in-chief or cross examination. Section 151 of the Code provides that nothing in the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for reopening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination. This inherent power of the Court is not affected by the express power conferred upon the Court under Order 18 Rule 17 of the Code.
In my considered view, merely because there has been a change of a counsel and new counsel wants to put some additional questions to the witness, it does not afford a valid justification to the defendant to apply for recall of the witness whose statement was recorded and whom he was allowed to cross examine.
I therefore do not find any merit in this writ petition. The writ petition is therefore dismissed.
(MOHAMMAD RAFIQ), J.
RS/170 All corrections made in the judgement/order have been incorporated in the judgement/order being emailed.
(Ravi Sharma,P.A.)