Delhi High Court
Arun Kumar Singla vs Harish Kumar (Deceased) Through Lrs & ... on 18 July, 2024
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 26.04.2024
Judgment pronounced on: 18.07.2024
+ CM(M) 1273/2023, CM APPL. 40621/2023--stay
ARUN KUMAR SINGLA ..... Petitioner
Through: Mr. Abhimanyu Singla, Ms. Neha
Sareen and Mr. Gautam Singh, Advs.
versus
HARISH KUMAR (DECEASED) THROUGH LRS & ORS.
..... Respondents
Through: Mr. Rajeev Saini, Adv.
CORAM:
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
1. The petitioner is aggrieved by the order dated 24.05.2023 passed by the learned Additional District Judge-03, North-West, Rohini Courts, Delhi (hereinafter referred to as "Trial Court") in CS No.75431/16, titled as "Sh. Arun Kumar Singla vs. Harish Kumar & Ors." whereby the learned Trial Court partly allowed the application filed by respondent nos.2 & 3 under Section 138 of the Indian Evidence Act, 1872 (in short "IEA") read with Section 151 of the Civil Procedure Code, 1908 (in short "CPC") to the extent that the defendant's witness, Sh. Rajinder Garg was allowed to be recalled for the purpose of re-examination by the respondents. Thus, the present petition has been preferred invoking the supervisory jurisdiction of Signature Not Verified Digitally Signed CM(M) 1273/2023 Page 1 of 11 By:NEELAM Signing Date:19.07.2024 10:40:24 this Court under Article 227 of the Constitution of India to assail the said order.
2. For the purpose of adjudication of the present petition, the relevant facts are that on 01.12.2012, the petitioner filed a suit for possession and mesne profits against the respondents.
3. It is the case of the petitioner that in the year 2000, he purchased the suit property i.e. House no. 330, D/11, Sector - 7, Rohini, Delhi - 110085, from Sh. Singara Singh, the original title holder through his General Power of Attorney holder, late Sh. Harish Kumar, by virtue of a registered sale deed. The sale deed was attested by two marginal witnesses, namely, Sh. D.K. Singh and Sh. Rajinder Garg. However, the possession of the suit property was unlawfully taken over by respondent nos.2 & 3 in collusion with respondent no.1.
4. To contest the matter, respondent no. 1 filed his written statement stating that he had sold the suit property exclusively to the petitioner and denied any transaction with respondent nos.2 & 3. Subsequently, respondent nos.2 & 3 filed a joint written statement claiming ownership of the suit property based on forged and fabricated documents such as General Power of Attorney, Special Power of Attorney and Agreement to Sell etc.
5. After completion of the pleadings, the issues were framed on 12.03.2014 and additional issues were framed on 01.08.2014. The evidence of the petitioner was concluded on 30.10.2018. Thereafter, respondent nos.2 & 3 moved an application under Section 151 CPC seeking permission to file their list of witnesses which was allowed by the learned Trial Court.
Signature Not Verified Digitally Signed CM(M) 1273/2023 Page 2 of 11 By:NEELAM Signing Date:19.07.2024 10:40:246. In pursuance thereof, two witnesses of the respondent nos.2 & 3, namely DW-2&3/1 and DW-2&3/2, were examined and discharged on 24.04.2019. Thereafter, the matter was scheduled for recording the remaining evidence of respondent nos.2 & 3.
7. On 04.09.2019, the newly engaged counsel for the respondent nos.2 & 3 moved an application under Section 138 IEA read with Section 151 CPC for taking off the record, the evidence of defendant's witness i.e. Sh. Rajinder Garg or alternatively, to allow the applicants to re-examine the witness. Vide impugned order dated 24.05.2023, the learned Trial Court allowed the said witness to be recalled for the purpose of re-examination by respondent nos.2 & 3. Therefore, the petitioner being aggrieved by the impugned order dated 24.05.2023 has filed the present petition. Submissions by the Petitioner
8. Mr. Abhimanyu Singla, learned counsel for the petitioner submitted that the impugned order is bad in the eyes of law as it was passed without reviewing the case record and considering the provision of Order XVIII Rule 17 CPC in relation to Section 138 IEA. Moreso, the learned Trial Court has relied upon baseless grounds raised by respondent nos.2 & 3 in their application.
9. Learned counsel further submitted that the learned Trial Court mechanically allowed the present application to summon a witness who had already been examined, cross-examined and discharged. Furthermore, the application fails to provide any justifiable reason to explain the need to re-examine the witness so as to elucidate any new information during such re-examination. The learned Trial Court has further failed to consider that respondent nos.2 & 3 have leveled serious and defamatory allegations Signature Not Verified Digitally Signed CM(M) 1273/2023 Page 3 of 11 By:NEELAM Signing Date:19.07.2024 10:40:24 against their previous counsels and that too, in their absence in order to avail an opportunity to re-examine their witness.
10. It was next contended by the petitioner that the learned Trial Court overlooked the fact that the provisions of the Indian Evidence Act do not prescribe a procedure that substitutes the Civil Procedure Code and the provision under Section 138 IEA has been incorrectly invoked by the respondent nos.2 & 3. The fact remains that through the present application, the respondent nos.2 & 3 intend to introduce a new and unusual practice of editing evidence that has already been recorded in Court under the guise of Section 138 IEA. Therefore, to circumvent this situation, respondent nos.2 & 3 have deceitfully drafted this application, thereby attempting to introduce a new procedure in the civil law.
11. Finally, learned counsel submitted that the learned Trial Court failed to appreciate that the witness, Sh. Rajinder Garg/DW-2&3/2 was summoned and examined by respondent nos.2 & 3 and subsequently cross- examined by the petitioner. Upon review of the matter by the newly appointed counsel for respondent nos.2 & 3, it was realized that the testimony of the witness did not support their case. Therefore, by way of this application, respondent nos.2 & 3 seek to rectify the recorded evidence of DW-2&3/2. Furthermore, it has not been explained why the witness was not sought to be re-examined before his discharge. Now, after seeing the deposition of the said witness, who previously deposed to being under threat, is being recalled to modify and improve his earlier deposition. Additionally, this would allow respondent nos.2 & 3 to tutor the witness as per their suitability to cover up the lacunae that has been exposed during the cross-examination.
Signature Not Verified Digitally Signed CM(M) 1273/2023 Page 4 of 11 By:NEELAM Signing Date:19.07.2024 10:40:2412. To support his contentions, the learned counsel for the petitioner has relied upon the following judgments: -
a) Simrin Singh vs. Amrit Srinivasan and Ors.;
MANU/DE/6349/2018.
b) Capitol Art House (P) Ltd. vs. Neha Datta; MANU/DE/2091/2022.
c) Basanta Kumar Pradhan vs. Gati Krushna Rout and Ors.; MANU/OR/0354/2024.
d) Shashi Sehdev vs. Narender Kumar Sharma;
MANU/DE/2366/2022.
Submissions by the Respondent no. 2 & 3
13. In response, Mr. Rajeev Saini, learned counsel for respondent nos.2 & 3 submitted that both the respondents purchased the suit property from respondent no.1 on 10.04.2002 and respondent nos.2 & 3 have been in continuous peaceful possession of the suit property since the date of the purchase, however, the petitioner has instituted a false and fabricated case against them.
14. Learned counsel submitted that due to a mistake of their erstwhile counsel, respondent nos.2 & 3 have suffered hardship as they never intended to examine Sh. Rajinder Garg as a witness in defence. However, Sh. Rajinder Garg was summoned as a witness on their behalf despite objections from their side, which is evident from the manner in which his evidence has been recorded.
15. It was submitted that the statement of the Sh. Rajinder Garg was recorded orally in less than three lines and his examination-in-chief by way of affidavit was not filed. The respondents nos.2 & 3 neither consented nor Signature Not Verified Digitally Signed CM(M) 1273/2023 Page 5 of 11 By:NEELAM Signing Date:19.07.2024 10:40:24 ever instructed for summoning and leading evidence of Sh. Rajinder Garg, his name was also not mentioned in the signed list of witnesses entrusted to the previous counsel.
16. Learned counsel further submitted that the previous counsel on 09.01.2019, instructed respondent nos.2 & 3 to sign in two places on some typed documents including a single page application and a three page list of witnesses. However, the previous counsel unexpectedly submitted a different list of witness in the Court. It was only then, the respondent nos.2 & 3 became aware of the existing scenario adversely affecting their case to which they neither consented nor issued any instructions.
17. Learned counsel submitted that in these circumstances, Sh. Rajinder Garg requires to be re-examined so as to clarify the cloud of doubt that has been created by his ambiguous statement during his cross-examination, which is in complete contravention of the facts of the case.
18. Lastly, the learned counsel for respondent nos.2 & 3 submitted that the re-examination of the witness will not cause any prejudice to the petitioner, if allowed. Further, it will help in bringing the truth before the Court. Thus, the respondent nos. 2 & 3 prayed for a single opportunity in the interest of justice to seek clarifications from DW-2&3/2 regarding the ambiguous statement made by him during cross-examination. Analysis and conclusion
19. This Court has gone through the record with reference thereto considered the respective submissions of the counsels for the parties and the judgments relied upon during course of arguments.
Signature Not Verified Digitally Signed CM(M) 1273/2023 Page 6 of 11 By:NEELAM Signing Date:19.07.2024 10:40:2420. Before dealing with the facts of the case, it is deemed apposite to refer to the two judgments of the Apex Court, whereby the provision under Order XVII Rule 17 CPC has been examined.
a. The Hon'ble Supreme Court in Vadiraj Naggappa Vernekar (D) Through Lrs. vs. Sharad Chand Prabhakar Gogate reported in AIR 2009 SC 1604 held as under:
"25. 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.
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 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.
27. In the instant 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 the 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.
28. 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.
29. 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."
29. 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.
Signature Not Verified Digitally Signed CM(M) 1273/2023 Page 7 of 11 By:NEELAM Signing Date:19.07.2024 10:40:2430. 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 witness thereafter."
b. Further, I may also refer to the case titled as K.K. Velusamy vs. Palaanisamy reported as 2011(11) SCC 275 wherein it is observed as under:
"9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness 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 doubts 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. (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate [(2009) (4) SCC 410)
10. Order 18 Rule 17 of the Code 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. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.
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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. xxxxxxx Signature Not Verified Digitally Signed CM(M) 1273/2023 Page 8 of 11 By:NEELAM Signing Date:19.07.2024 10:40:24
21. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. The courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, reopening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency."
21. Reference may be made to the following observations of the learned Single Judge of this Court in Simrin Singh vs. Amrit Srinivasan and Ors., MANU/DE/6349/2018 while interpreting Section 138 of Indian Evidence Act:-
9. Though Section 138 supra permits re-examination 'to explain the matters referred to in cross-examination' and permits further cross-
examination of the witness thereafter, only if the Court has in re- examination permitted new matters to be introduced (else, after re- examination, there is no right of further cross-examination) but in my opinion, the words 'explain matters referred to in cross-examination' cannot be interpreted so widely as to permit in routine, re- examination of witness and in the name of re- examination, undo what has been achieved/revealed in cross-examination. In my view, re- examination, particularly in civil cases, has to be permitted rarely. I say so because civil proceedings are essentially adversarial, as distinct from adjudication of criminality, which, with the passage of time, is more inquisitorial than adversarial, with the prosecution as well as the Judge being in search of truth, rather than letting a finding on criminality being returned for failure and defaults of the accused.
10. I am also of the view that unless there is no objection to reexamination of the witness, re-examination sought even if only to explain matters referred to in cross-examination if disputed, the said dispute can be decided by the Court only. In such cases, re- examination can only be with permission of Court.
11. The words 'explanation of matters referred to in cross- examination' in Section 138 supra, in my view, have to be interpreted as re-examination confined to explanation of the sense and meaning of the expressions used by the witness in cross-examination, if they be in themselves doubtful and also the motive by which the witness was induced to use those expressions. Re- examination, in my view, cannot go further than that. I reiterate that re- examination cannot be sought and allowed, with the sole object of giving a chance to the witness to undo the effect of statements earlier made in cross- examination. Lacunae in evidence led cannot be filled up under the pretext of re- examination.
Signature Not Verified Digitally Signed CM(M) 1273/2023 Page 9 of 11 By:NEELAM Signing Date:19.07.2024 10:40:2422. In the case at hand, as is stated herein above, Sh. Rajinder Garg, the witness summoned by respondent nos.2 & 3 in his examination in chief admitted his signatures to the sale deed stated to be executed by respondent no.1 in favour of the petitioner. The said witness is cross-examined by the petitioner himself. Thus, it is clear that the petitioner did not produce the witness to the sale deed stated to have been executed by respondent no.1 in favour of the petitioner but it is the respondent nos.2 & 3 who summoned the said witness and then petitioner cross-examined the witness as DW- 2&3/2, who is a witness to the petitioner's sale deed which is the basis of his claim in the suit. The respondent nos.2 & 3 by leveling allegations on their previous advocate contended that they never intended to summon the witness to the sale deed of the petitioner and it is in these circumstances the respondent nos.2 & 3 filed an application seeking relief as under:
"a/ evidence of DW - 2 & 3/ 2 Shri Rajinder Garg be either completely taken off the records;
b/ Or alternatively, the applicants may kindly be allowed to re- examine this witness, in the interest of justice, for administration of justice, equity, fair-play and good conscious.
c/ Any other appropriate orders, which this Hon'ble court deems fit and proper may also kindly be passed, in the crucial facts and circumstances of this case."
23. Though the learned Trial Court did not grant the main relief but granted permission to the respondent nos.2 & 3 to re-examine the said witness. In peculiar facts and events that happened where the respondent nos.2 & 3 summoned the witness to sale deed of the petitioner, and the petitioner having extensively cross-examined him much beyond the examination in chief and taking into account that the respondent nos.2 & 3 have leveled serious allegations against their erstwhile counsel, it cannot be Signature Not Verified Digitally Signed CM(M) 1273/2023 Page 10 of 11 By:NEELAM Signing Date:19.07.2024 10:40:24 said that the learned Trial Court did not legally exercise the jurisdiction vested in it. However, the said re-examination has to be with a rider that the re-examination shall be confined to explain the matters referred to in cross-examination of the witness. The re-examination shall be for the purpose of explanation of the sense and meaning of the expression used by the witness in its cross-examination. The learned Trial Court shall ensure that re-examination is limited within the window prescribed in Simrin Singh vs. Amrit Srinivasan and Ors.(supra).
24. In view of the aforesaid, the learned Trial Court to grant one opportunity to the respondent nos. 2 & 3 to re-examine the witness i.e. Sh. Rajinder Garg on the next date of hearing or any date convenient to the learned Trial Court.
25. In the light of the aforesaid, the petition along with pending application stands disposed of.
SHALINDER KAUR, J.
JULY 18, 2024 SDS Signature Not Verified Digitally Signed CM(M) 1273/2023 Page 11 of 11 By:NEELAM Signing Date:19.07.2024 10:40:24