Rajasthan High Court - Jaipur
Ashok Kumar Agarwal vs Pramod Kumar Jain on 5 August, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.1753/2011 S.B. Civil Misc. Stay Application No. 1618/2011 (Ashok Kumar Agarwal Versus Pramod Kumar Jain) Date of Order :: 5th August, 2011 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Lokesh Sharma, counsel for the petitioner. Mr. K.N. Bhatt, Counsel for the respondents
REPORTABLE By way of the instant writ petition, the petitioner has beseeched to quash and set-aside the order dated 22nd January, 2011, whereby the learned Additional District Judge No. 8, Jaipur City, Jaipur dismissed the application filed by the petitioner under Order 18 Rule 17 of CPC readwith Section 138 of Indian Evidence Act.
Having considered the submissions made at the bar and carefully perused the relevant material on record including the impugned order, it is noticed that the petitioner defendant Ashok Kumar DW-1 was examined by the defendants-respondents to defend his case. This witness is said to have admitted his signatures on one document Agreement to Sell, when shown to him during his cross-examination. After conclusion of cross-examination, learned counsel for the defendant submitted an application stating that he had wrongly admitted his signatures on document (Ex.-1) to be his own as the document was not properly shown to him and it was shown from some distance, whereas that document in-fact did not bear his signatures as the signatures had already been opined to have been forged as per the report of Forensic Science Laboratory. Learned counsel for the petitioner-defendant, in such a situation, filed an application imploring the court to permit him to re-examine the witness DW-1 Ashok Kumar. That application stood dismissed by the learned trial court. The order, whereby the application stood dismissed has been impugned by the petitioner by way of the instant writ petition.
Learned counsel for the petitioner canvassed that the defendant DW-1 Ashok Kumar had inadvertently or under a misconception admitted his signatures to be his own on a document, agreement to sell during his cross-examination but the fact is that the admission was, in entirety contrary to the existing true position as the document, Agreement to Sell (Ex-1) did not in-fact bear his signatures. The FSL report was already on record and that too evinced the signatures of DW-1 Ashok Kumar to be forged. The witness, in fact admitted the signatures of his own for the simple reason that the signatures were shown in the pigeon hole from a distance. The defendant wanted to rectify the mistake having been committed in the cross-examination by way of adducing evidence again in the re-examination and, accordingly, defendant filed an application under order 18 Rule 17 of CPC readwith Section 138 of Indian Evidence Act, which was dismissed by the Court. In view of this state, the impugned order is found to be totally arbitrary and contrary to the provisions of law, which deserves to be set-aside.
E Converso, the learned counsel for the respondents vehemently opposed the submissions made by the learned counsel for the petitioner contending that the provisions of Rule 17 of Order 18 CPC were exclusively meant for the Court and not for the parties. Earlier there was a provision under Civil Procedure code to adduce additional evidence under Rule 17 A, but the same stands repealed with effect from 1st July, 2002. He has cited the case of Kannammal Versus Nallappagounder and others reported in 2010 LawSuit (Madras) 562 and Vadiraj Naggappa Vernekar (Dead) through LRs Versus Sharadchandra Prabhakar Gogate reported in (2009) 4 Supreme Court Cases 410 in support thereof.
A bare perusal of Rule 17 of Order 18 CPC shows that 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.
At this stage, it is relevant to reproduce the provisions of Section 165 of Indian Evidence Act, which reads thus:
Judge's power to put questions or order production:
The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.
If the provisions of Rule 17 Order 18 CPC are read with Section 165 of Indian Evidence Act, it would be tangible that the power under Rule 17 CPC and Section 165 of Indian Evidence Act are conferred on the court and not on the parties and, therefore, it is the court alone, which can exercise the powers under Rule 17 Order 18 CPC, if the court is of the opinion that it is necessary to recall any witness for the just decision of the case. The recalling of a witness for examination, which is contemplated by Rule 17 of Order 18 CPC and Section 165 of Indian Evidence Act is to be made by the Court and not by the parties. Viewed in this light, if the powers under rule 17 of Order 18 are used by the court for the purpose of enabling any party to examine or re-examine the witness, it would be impermissible to do so. Of-course the court has unfettered powers to examine and re-examine any witness under Rule 17 of Order 18 CPC readwith Section 165 of Indian Evidence Act at any stage and at any time.
Madras High Court in the case of Kannammal Versus Nallappagounder and others (supra) observed that the court concerned would have the power to recall a witness under Order 18 Rule 17 of CPC. Such power would be exercised only in exceptional cases, where it is warranted. Albeit the Madras High court also observed that the Court could permit the party on an application to summon the witness, but only when the sufficient cause was shown.
The Hon'ble Apex Court in the case of Vediraj Naggappa Vernekar Versus Sharadchandra Prabhakar (supra) has categorically held that the powers under Rule 17 of Order 18 CPC are exclusively conferred on the court and not on the parties. The Hon'ble Apex Court further observed as under:
The main purpose of Order 18 Rule 17 is to enable 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.
The judgment of Hon'ble Apex Court tangibly suggests that the party cannot be permitted to re-summon the witness, who had already been examined for the purpose of re-examination to rectify the defects having already crept in the earlier examination-in-chief or in the cross-examination.
Having reflected over the submissions made by the learned counsel for the parties and carefully perused the afore-stated pronouncements of Hon'ble Apex Court and Madras High Court as also the provisions of CPC and Indian Evidence Act, it may be summed up that the power to recall any witness under Order 18 Rule 17 readwith Section 165 of Indian Evidence Act is conferred on the court and not on parties. Albeit the learned trial court is found to have dismissed the application on merits, but the law too does not support the petitioner.
To sum up, the petitioner is barred to invoke the provisions of Rule 17 of Order 18 CPC as these provisions are not meant for the defendant or the opposite party, but the power to recall any witness, who has been examined earlier, is conferred exclusively on the court. Thus, the writ petition being devoid of any substance deserves to be dismissed.
For the reasons stated above, the writ petition fails and the same being bereft of any merit stands dismissed.
Consequent upon the dismissal of writ petition, the stay application, filed therewith, also stands dismissed.
I am told that the suit has been pending for hearing final arguments since long, hence the learned trial court is directed to expedite hearing and decide the suit as early as possible.
(MAHESH BHAGWATI), J.
DK