Andhra HC (Pre-Telangana)
T. Ramachandra Murthy vs K. Rama Murthy And Ors. on 27 June, 1980
Equivalent citations: AIR 1980 ANDHRA PRADESH 265
ORDER
1. The point that falls for determination is, whether it is competent for the Court of first instance to recall a witness at the instance of the party at a time when not only the arguments in the case were over but the case was even reserved for judgment.
2. The relevant facts in brief are: The petitioner plaintiff filed the suit for declaration and possession on the basis of a gift deed against the defendants who tried to face it with a counter claim on the basis of a will said to have been executed by the same person who is said to have gifted the property to the plaintiff. Issues were framed and evidence was let in. Though the evidence was closed in the year 1977, however in June 1979, an additional written statement was filed and thereafter the issues were recast, one of the recast issues being "whether the gift in favour of the plaintiff's wife was accepted or not"? In the month of December, the arguments were heard and judgment was reserved. It is at that time an interlocutory application was filed by the plaintiff for reopening the suit and recalling P. W. 1 to adduce further evidence. The said interlocutory application was dismissed by the lower Court on the ground that in order to circumvent the lacuna in the plaintiff's evidence, the petitioner wanted to recall P. W. 1 to adduce further evidence with regard to the acceptance in this revision.
3. The contention of the learned counsel for the revisionist is that under Section 151, Civil Procedure Code, it is competent for the Court to reopen the suit and allow recalling of the witnesses for the purpose of examination or cross examination even at stage when the case is reserved for judgment. Reliance was placed on a number of decisions. One is Ram Swarup v. Kamala Prasad, wherein a Bench of the Patna High court held:
"This is a case in which the order on the basis of which the preliminary decree was passed against all the defendants is on the face of it defective, irregular, and inoperative against all the defendants of the suit, and the Court has to relieve the plaintiff against the injustice done to them by its own acts, mistakes or over-sights"
It was further held:
"Section 151 Civil P. C. can certainly be applied in contingencies of this character, and its terms are wide enough to include a case of this nature. The Code of Civil Procedure has never been regarded to be so exhaustive as to cover cases of all character, and, therefore, a section was enacted which enables the Court to act upon the assumption of the possession of inherent powers for doing real and substantial justice between the parties, and for preventing any injustice being done on account of its own careless acts."
The second is Sultan Saleh Bin Omer v. Vijayachand Sirimal, , wherein a single Judge of this Court held:
"A combined reading of all these provisions makes it abundantly clear that the Code has not provided for hearing of arguments as a distinct stage in the trial of the suit. On the other hand, according to O. 15 R. 3, the hearing of the suit includes both production of evidence, as well as argument. It is in the option of the parties to argue their case after the evidence in the suit is closed, and it is for them to decide whether they will exercise their privilege or not. In other words, once the trial of the suit is taken up and the examination of the witnesses has commenced, the hearing of the suit is said to begin; and that hearing comes to an end only with the delivery of the judgment, or when the suit is posted for judgment where it is reserved. In cases, therefore, where the suit has not been posted for judgment, but is posted for hearing arguments of one side or the other, it should be remembered that the hearing of the suit is not concluded, though the recording of evidence might have been finalised by both the parties. In such cases, either party is not precluded from making a request for examination of additional witnesses or making documents, merely on the ground that the trial is closed and the matter is posted for arguments, whether the request should be granted or not, is however, a matter to be decided on its merits, bearing in mind the fact that it is belated."
Order 18, Rule 17, Civil Procedure Code, is with reference to recalling of witnesses by the Court. It reads:
"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".
4. Order 20, Rule 1, Civil Procedure Code, enjoins upon the Court to pronounce the judgment after the case was heard.
5. The undisputed fact is that it was only after the judgment was reserved and at a time when there was no more hearing of the case, the interlocutory application was made. So, the jurisdiction of the Court was sought to be invoked for recalling the witness at the time when the hearing of the case was over within the meaning of Sultan Saleh Bin Omer v. Vijayachand Sirimal (supra). No authoritative pronouncement has been brought to my notice wherein it is held that under Section 151 a witness can be recalled by reopening the suit under the circumstances of the present case. The Patna case referred to above deals with a situation which is wholly different from the case on hand and, therefore, it is of no or little assistance to the petitioner. In this case, the issues were recast in June 1979 and after hearing the arguments, the judgment was reserved in December, 1979. No reason whatsoever has been assigned for not making an attempt for a period of six months at recalling P. W. 1 as was sought to be made at the time the judgment was reserved. I, therefore, find no error in the order under revision when the lower Court observes that the application is nothing but an act to fill up the lacuna. It is now agreed by both the Counsel, and it is also well settled, that it is purely a discretionary remedy, and I do not find any indiscretion or lack of judicial discretion exercised by the lower Court warranting interference.
6. In the result, the Civil Revision Petition is dismissed. No costs.
7. Revision dismissed.