Madhya Pradesh High Court
Kamla Devi vs Smt.Sunita Devi on 9 July, 2014
1 WP No.1069/2014
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
SB: Justice Sujoy Paul
WP No. 1069/2014
Kamla Devi
VS.
Smt. Sunita Devi and Ors.
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Shri K.B. Chaturvedi, Senior Advocate with the Shri G.P. Chauraisya,
Advocate for the petitioner.
Shri N.K. Gupta, Advocate for the respondents No. 1 to 4.
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ORDER
( 09 / 07 / 2014) The petitioner / plaintiff filed a suit for declaration and permanent injunction which was registered as Civil Suit No. 8A/12.
2. The petitioner stated that she is the wife of Indal Singh. Respondents No. 1 to 4 filed their written statement and denied this averment. It is stated by the respondents that the petitioner is not the wife of Indal Singh. Thereafter parties led their evidence. The petitioner obtained copies of notices issued by the Trial Court in case No. 64A/1997 filed by Man Singh (Respondent No.4). In addition, she obtained copy of order sheets of the said Civil Suit dated 22.12.2000 (Annexure P/5 and P/6) respectively. Certified copy of those documents were filed by the petitioner before Court below to show that respondent Man Singh himself described the petitioner as widow of Indal Singh. At this stage, petitioner filed an application under Order 7 Rule 14(3) C.P.C. to take those documents on record. The Court below decided the said application by order dated 25.07.2013 (Annexure P/7) and gave a specific finding that the said documents are relevant and necessary for lawful adjudication of the matter. The documents were accordingly taken on record. At this stage, petitioner filed an application under Order 18 Rule 17 C.P.C. on 06.01.2014 (Annexure P/8). The respondents filed their reply Annexure P/9. Parties were heard on this application. The Court below by the impugned order dated 21.01.2014, rejected the said 2 WP No.1069/2014 application.
3 Shri K.B. Chaturvedi, Sr. Advocate, submits that petitioner is confining his relief only for recalling Kamla Bai( plaintiff) as a witness to depose her statement with regard to those documents which were taken on record on 25.07.2013. Shri Chaturvedi submits that the reasons assigned by the Court below for rejecting the said application are perverse and runs contrary to record. By drawing attention of this Court on impugned order it is urged that Court below has erroneously opined that documents were filed on 01.07.2013 and Man Singh was cross- examined on 01.07.2013. The finding of the Court below that documents were already on record on that date (01.07.2013) is perverse. If it is examined in the light of order dated 25.07.2013 (Annexure P/7), learned senior counsel submits it will be clear like a noon day that finding runs contrary to record and is perverse. He submits that Court below has rejected the application on incorrect grounds and therefore, failed to exercise its jurisdiction.
4. On the other hand, Shri N.K. Gupta, learned counsel for the respondents No. 1 to 4 submits that order 18 Rule 17 C.P.C. makes it crystal clear that power can be exercised by the Court for the purpose of removing any doubt which is cropped up in the mind of Court. It cannot be done to fill up the lacunae by the plaintiff. In support of this contention he relied on 2009 (4) SCC 410 (Vadiraj Naggappa Vernekar (dead) Through LRs Vs. Sharad Chandra Prabhakar Gogate) and 2011 (11) SCC 275 ( K.K. Velusamy Vs. N. Palanisamy). Lastly, he relied on 2013 (14 ) SCC 1 (Bagai Construction Vs. Gupta Building Material Store). In rejoinder, Shri Chaturvedi submits that judgments cited by Shri Gupta have no application in the facts and circumstances of the present case. It is not a case where the documents were already on record when plaintiff deposed his statement and plaintiff failed to rely no those documents. Thus, there is no omission on the part of the petitioner / plaintiff.
5. I have heard learned counsel for the parties and perused the record.
6. In Vadiraj Nagappa Vernekar (supra) the Apex Court in para 26 opined as under :-
"26. 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 3 WP No.1069/2014 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."
7. Vadairaj Naggappa and subsequent judgment of Apex Court in K.K. Velusamy (supra) were considered by the Supreme Court in its recent judgment in the case of Bagai Construction (supra). The Apex court reproduced the paragraph 19 of the judgment of Velusamy in Bagai Construction (supra) which reads as under :-
"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 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 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 witness 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."
8. In para 14 of Bagai Construction (supra) the Apex Court opined that the relevant documents were in possession of the plaintiff but same were not placed on record. It was filed at the stage of final arguments and after reserving the matter for pronouncement of the judgment. On the basis of these judgments, it is clear that power under Order 18 Rule 17 C.P.C. cannot be exercised to fill up the gap of the evidence. However, if application is bonafide and where the additional evidence, oral or documentary may assist the court to clarify the evidence on the issues and is necessary for 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.
9. In the present case, the Court below has rejected the application of the petitioner solely on the ground that documents were filed on 01.07.2013 and the petitioner has not shown any reason for not filing these documents at an early stage and further opined that Man Singh 4 WP No.1069/2014 was cross-examined on 01.07.2013 and by that date the documents were already taken on record. This finding is contrary to the record. Man Singh's statement was recorded by the Court below on 01.07.2013. The relevant documents were taken on record on 25.07.2013. Thus, the finding is incorrect and perverse inasmuch as it is mentioned that on the date of cross-examination of Man Singh, the relevant documents were already on record. The Court below has also not considered the principle flowing from para 19 of the judgment of K.K. Velusamy, discussed above. Since the order is based on incorrect reasons, it became vulnerable.
10. In the result, impugned order (Annexure P/1) whereby application of the petitioner filed under Order 18 Rule 17 C.P.C. was rejected, is set aside. The matter is remitted back to the Court below to hear the parties afresh and decide the application in accordance with law. It is made clear that for deciding the application under Order 18 Rule 17 C.P.C., the Court below has to exercise its discretionary in accordance with law. This needs to be done by the court below. It is made clear that this Court has not expressed any opinion on the merits of the matter.
11. The petition is allowed to the extent indicated above. No Costs.
(Sujoy Paul) Judge sarathe