Madhya Pradesh High Court
Sanjay Dhingra vs Sunil Dhingra on 2 January, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 02nd OF JANUARY, 2024
Misc. Petition No.7449 of 2023
BETWEEN:-
SANJAY DHINGRA S/O LATE ISHWAR DATT AGED
ABOUT 54 YEARS, OCCUPATION BUSINESS, R/O 1046
VIJAY NAGAR MAHARAJA AGRASEN WARD,
JABALPUR, MP
.....PETITIONER
(BY SHRI AWESH KUMAR PATEL - ADVOCATE)
AND
1. SUNIL DHINGRA S/O LATE ISHWAR DATT
AGED ABOUT 63 YEARS OCCUPATION
BUSINESS, R/O 125 DHINGRA COMPLEX
AHINSA CHOUK VIJAY NAGAR
JABALPUR (MP)
2. SMT. ANITA KAPOOR W/O DR. A.K.
KAPOOR AGED ABOUT 65 YEARS
OCCUPATION HOUSEWIFE R/O BUER
DADAR, DISTRICT RAIGARH (CG)
3. JABALPUR DEVELOPMENT AUTHORITY
THROUGH CHIEF EXECUTIVE OFFICER
CIVIC CENTER JABALPUR (MP)
......RESPONDENTS
..............................................................................................................................................................................
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition is under article 227 of the Constitution of India 2 questioning the validity of order dated 05.09.2023 passed by the trial Court in a pending civil suit whereby an application submitted by the petitioner/defendant under Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure has been rejected by the trial Court.
2. As per the application, the defendant wanted to recall the plaintiff's witness for further examination on the point that he has filed certain documents and also made amendment in the written-statement with regard to the fact that the suit of similar nature already filed got dismissed by the Court on earlier occasion. The application for amendment has been allowed and documents have also been taken on record. The case is fixed for final arguments. However, the application was moved for recalling the plaintiff's witness so as to cross-examine them on the point of documents which had already been taken on record.
3. The trial Court has rejected the application saying that the respective provision i.e. Order 18 Rule 17 of the Code of Civil Procedure is an enabling provision which makes the Court competent to call any witness at any stage of the case if the Court thinks fit to put a specific question to the witness. Although, the said provision has been considered by the Supreme Court and also by various High Courts saying that the application can be moved by the parties to call the witness and Court may consider the same, but it is specified by the Court that the said provision can be exercised sparingly, but it cannot be used for the purpose of filling up the lacuna of the parties. The trial Court after considering this fact has rejected the application saying that since the question with regard to dismissal of earlier suit has already been asked during examination of plaintiff's witness, therefore, their further examination is not any more required.
4. Learned counsel for the petitioner submits that when application of 3 amendment in the written-statement is allowed and documents with regard to said fact have already been taken on record, then the trial Court should also allow the application for recalling the witness.
5. However, I am not satisfied with the submission advanced by learned counsel for the petitioner for the reason that the petitioner/defendant has made amendment in the written-statement and in support whereof he has also placed documents on record and to prove that particular part of his stand, calling the plaintiff's witness again is not required especially under the circumstance when the trial Court has observed that the specific question with regard to dismissal of earlier suit has already been asked from the plaintiff's witness. The Supreme Court in a case reported in (2013) 14 SCC 1 [Bagai Construction Vs. Gupta Building Material Store] has observed as under:-
"9. In Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate [Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 : (2009) 2 SCC (Civ) 198] this Court had an occasion to consider similar claim, particularly, application filed under Order 18 Rule 17 and held as under : (SCC pp. 414-15, paras 25, 28-29 & 31) "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.
* * *
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 4 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.
* * *
31. 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."
10. If we apply the principles enunciated in the above case and the limitation as explained with regard to the application under Order 18 Rule 17, the applications filed by the plaintiff have to be rejected. However, the learned counsel for the respondent by placing heavy reliance on a subsequent decision, namely, K.K. Velusamy v. N. Palanisamy [K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275 : (2011) 3 SCC (Civ) 665] , submitted that with the aid of Section 151 CPC, the plaintiff may be given an opportunity to put additional evidence and to recall PW 1 to prove those documents and if need arises other side may be compensated. According to him, since the High Court has adopted the said course, there is no need to interfere with the same.
* * *
14. The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons known to it, still the plaintiff has not placed these bills on record. In such circumstance, as rightly observed by the trial court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of the judgment, we are of the view that the plaintiff cannot be permitted to file such applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the trial court, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words "at any stage"
occurring in Order 18 Rule 17 casually set aside the order of the trial court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW 1 to prove those bills. Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of court and court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial court, namely, those 5 documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 CPC, the plaintiff cannot be permitted."
However, the Gauhati High Court in a case reported in AIR 2006 Gauhati 184 [Jhanwarlal Patwa Vs. Uday Narain Goswami and another] considering the said aspect has observed as under:-
"9. Section 151 of the CPC can only be invoked, if there is no express provision dealing with a particular situation. As to the methodology and procedure of examining, cross-examining and re-examining the witnesses there are specific provisions both in the CPC and the Evidence Act about which mention has been made above. Falling back on the provisions of Section 151, CPC, a party cannot be permitted to re-cross examine a particular witness who has already been examined and cross-examined. It is on record that the DW-1 was examined and reexamined and on both the occasions, the petitioner got the opportunity to cross-examine him. In fact, he was re-examined on 10-7-2003 on which date the jurisdictional Sub- Registrar produced the documents called for by the plaintiff/petitioner. If he was interested to cross-examine the DW-1 in reference to those documents, he could have easily done so. Instead he had chosen not to do so and thereafter, by his applications filed more than one year from 10-7-2003 on which date the documents were produced and the DW-1 was re-examined made the prayer for re-cross examination of the said witness. In the meantime, the evidence was closed and the matter was fixed for argument.
10. Order 18, Rule 17 to which a reference has been made by the learned counsel for the petitioner is also of no help to the case of the petitioner. This provision empowers the Court to call any witness who has already been examined. However, such power of the Court is subject to the law of evidence and the relevant provisions of the Evidence Act have been noticed above. Order 18, Rule 17 does not empower the Court to call for the witness already examined and cross-examined for the purpose of re-cross examination. The power of the Court to call for the witness is in the form of re-examination of the witness and not for the purpose of re-cross examination and that too at the sweet will of the party seeking such re-cross examination. Section 165 of the Evidence Act is also of no help to the case of the petitioner, which is again subject to the other provisions of the Act about which a mention has been made above. Section 165 only empowers the Court to put questions to any witness, which cannot be said to confer any right to the plaintiff to re-cross examine a witness who has already been examined and cross-examined on two occasions.
11. The two decisions on which learned counsel for the petitioner has placed reliance are of no help to the case of the petitioner in the given fact- situation. Needless to say, that the ratio of any decision must be understood in the background of that case. It has been said long time ago that a case is only 6 an authority for what it actually decides, and not what logically follows from it. In both the decisions, the learned single. Judge of the High Court dealing with the provisions of Order 18, Rule 17, CPC has held that the power vested on the Court is discretionary but the same ought to be exercised with the greatest care and only on the most peculiar circumstances. In the instant case, the particular witness has already been cross-examined on two occasions including 10-7-2003, when he was re-examined. On that day, the documents called for were produced by the jurisdictional Sub-Registrar. More than one year thereafter, the petitioner filed the applications seeking to re-cross examine the said witness. I am of the considered opinion that the learned Civil Judge has rightly rejected the prayer in her reasoned order dated 7-5- 2005, which has been passed in reference to the factual aspect of the matter.
12. In view of the above I do not find any infirmity in the orders dated 7-5-2005 passed by the learned Civil Judge (Sr. Division) No. 2, Cachar, Silchar in Title Suit No. 68/1999 and 63/1999 warranting any interference under Article 227 of the Constitution of India. Consequently both the applications are dismissed."
Recently, this Court in Misc. Petition No.1236 of 2022 [Sushri Shobhna and others Vs. Shri Moolchand and others] has considered the very provision of the CPC and observed as under:-
"I have perused the order passed by the Court below and also the respective provision i.e Order 18 Rule 17 of CPC which reads as under:-
17 Court may recall and examine witness:- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.
From perusal of aforesaid provision, it is clear that said provision empowers the Court to call any witness at any stage if court thinks so but that provision does not give any right to the party to call the witness under the said provision. This view has also been affirmed by the Punjab and Haryana High Court in case of Surinder Kaur Vs. Karanbir Singh, reported in AIR 2004 Punjab and Haryana 377 and (Kulwant Singh Vs. Makhan Singh) reported in AIR 1993 Punjab and Haryana 106, wherein it is observed by the Court that lacuna left by the party cannot be filled up by calling the witness under the provision of Order 18 Rule 17 of CPC.
In view of the aforesaid, I do not find any infirmity and irregularity in the impugned order petition, therefore, is without any substance is hereby dismissed."
6. Considering the aforesaid enunciation of law, I am of the opinion that in the facts and circumstances of the case, the application for calling 7 the plaintiff's witness again especially when the case is fixed for final arguments has rightly been rejected by the trial Court. As has been made clear that the said provision can be used by the Court sparingly at the request of the parties when it comes to conclusion that the witness is material for proper adjudication of the case. Moreover, in the present case, since the trial Court has considered this very aspect and observed that recalling the plaintiff's witness in the existing circumstance of the case is not proper, therefore, the said discretion, in my opinion, has rightly been exercised and it cannot be said that the trial Court has exercised its discretion injudiciously, therefore, the impugned order is liable to be set aside. On the contrary, I am of the opinion that the impugned order passed by the trial Court does not suffer from any material irregularity or illegality which warrants any interference from this Court.
7. In view of the above, the petition being sans merit, is hereby dismissed.
(SANJAY DWIVEDI) JUDGE dm DEVASHISH MISHRA 2024.01.03 11:04:57 +05'30'