Himachal Pradesh High Court
Lal Chand Ram Krishan vs Rajesh Thakur on 16 December, 2005
Equivalent citations: AIR2006HP61
Author: V.M. Jain
Bench: V.M. Jain
ORDER V.M. Jain, J.
1. This petition under Article 227 of the Constitution of India has been filed by the defendant -petitioner, challenging the order dated 3-12-2005 passed by the trial Court, dismissing the application of the defendant petitioner filed under Order 18, Rule 17 read with Section 151 CPC, for permission to produce a document and to prove the same.
2. The facts, which are relevant for the decision of the present petition are that the plaintiff had filed a suit for recovery of Rs. 1,08,904/- along with future interest etc. against the defendant. The said suit was contested by the defendant by filing written statement. Various issues were framed. The plaintiff produced evidence in support of his case. Thereafter, the case was fixed for defendant's evidence. When the case was still at the stage of defendant's evidence, an application dated 3-6-2005 under Order 18, Rule 17 read with Section 151 CPC was filed on behalf of the defendant for permission to place on the record bilty No. 414 for the proper adjudication of the case with a further prayer to summon the plaintiff and Nand Lal for proving the said document. The said application was contested by the plaintiff by filing a reply taking up various preliminary objections, including the maintainability of the said application.
3. After hearing both sides and perusing the record, the learned trial Court dismissed the aforesaid application, vide order dated 3-12-2005. Aggrieved against the same the defendant filed the present petition under Article 227 of the Constitution of India in this Court.
4. I have heard the learned Counsel for the defendant-petitioner and have gone through the record carefully.
5. The learned Counsel appearing for the petitioner submitted before me that the learned trial Court ought to have allowed the application under Order 18, Rule 17 CPC. However, I find no force in this submission of the learned Counsel for the petitioner.
6. As referred to above, in the application under Order 18, Rule 17 read with Section 151 CPC, it was alleged on behalf of the defendant-petitioner that inadvertently bilty No. 414 could not be filed before the Court and that the said document is very important for the proper adjudication of the case. It was accordingly prayed that the Court may allow the said bilty to be placed on the record for the proper adjudication of the case and that the plaintiff and Shri Nand Lal be summoned for proving the said document.
7. From a perusal of the above, it would be clear that the defendant-petitioner was not only seeking permission to place on record bilty No. 414 but was also seeking permission to summon the plaintiff and one Nand Lal for proving the said document. Under Order 18, Rule 17 CPC, the Court at any stage of the suit, is empowered to recall any witness who had been examined and may put such question to him as the Court may think fit. Thus, from a perusal of the Order 18, Rule 17 CPC it will be clear that while exercising the power under Order 18, Rule 17 CPC, the court is competent to recall any witness who had already been examined and he may be put such questions as the Court may think fit. By virtue of the law laid down by a Division Bench of Delhi High Court, in the case of National Agro Chemical Industries Ltd. v. National Research Development Corporation , it may be said that the examination, includes cross-examination as well and thus it can be said that when a witness has been examined the court at any stage of the suit, may recall said witness for the purpose of examination which includes cross-examination. However, so far as the production of document is concerned, in my opinion, the said document having not been produced on the record, the same could not be allowed to be produced especially when the provisions of Order 18, Rule 17-A CPC were omitted by vitrue of the Code of Civil Procedure (Amendment) Act, 2002, which had come into force w.e.f. 1-7-2002. Thus, the production of the document (bilty) could not be allowed considering that the provisions of Order 18, Rule 17-A CPC have since been omitted.
8. The authority Surinder Singh v. Sukhdev , relied upon by the learned Counsel for the defendant - petitioner, in my opinion, would have no application to the facts of the present case, especially when at the time when the aforesaid order was passed by this Court, the Court had exercised the powers not only under Order 18, Rule 17 CPC but also under Order 18, Rule 17-A CPC. However, after the provisions of Order 18. Rule 17-A CPC have been omitted from the Code of Civil Procedure, in my opinion, the powers under Order 18, Rule 17-A CPC cannot be exercised by the Court. In the present case, as referred to above, the defendant-petitioner had primarily sought permission of the Court to place on the record the bilty, which in my opinion, cannot be allowed, in the absence of any specific provision in this regard. So far as the re-calling of the plaintiff at the instance of the defendant and also summoning Nand Lal for proving the said document is concerned, in my opinion, the defendant-petitioner had not made any specific prayer in this regard. On the other hand. these witnesses are being sought to be summoned only for the purposes of proving the aforesaid document (bilty), which admittedly was not on the record at the time when the aforesaid application was filed and is sought to be produced with the permission of the Court. As referred to above, production of document is not covered by the provisions of Order 18. Rule 17 CPC.
9. In view of the detailed discussion above, in my opinion, no fault could be found with the order dated 3-12-2005 passed by the learned trial Court, dismissing the application of the defendant-petitioner. Accordingly, finding no merit in this petition, the same is hereby dismissed.