Madras High Court
A.S.K.Sivakumar vs D.Rajesh Jain on 27 April, 2010
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.4.2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD) No.479 of 2010 A.S.K.Sivakumar ... Petitioner vs. D.Rajesh Jain ... Respondent Civil Revision Petition has been filed against the fair and decretal order, dated 7.12.2009, in I.A.No.960 of 2009, in O.S.No.364 of 2005, on the file of the Additional District Munsif Court, Vellore. For petitioner : Mr.G.Vijayakumar For Respondent : Mr.T.K.Baskar O R D E R
This Civil Revision Petition has been filed against the fair and decretal order, dated 7.12.2009, in I.A.No.960 of 2009, in O.S.No.364 of 2005, on the file of the Additional District Munsif Court, Vellore.
2. The petitioner in the present Civil Revision Petition is the defendant in the suit. The respondent had filed the suit, in O.S.No.364 of 2005, praying for a decree directing the defendant in the suit, who is the petitioner herein, to redeliver possession of the suit schedule property and on his failure, to deliver possession of the suit property, through the process of court, and for a permanent injunction to restrain the defendant therein from leasing out the demised premises to third parties.
3. The petitioner had filed an interlocutory application, in I.A.No.960 of 2009, praying that the trial Court may be pleased to recall the respondent/plaintiff as a witness. The petitioner had stated in the affidavit filed in support of the interlocutory application that, on a perusal of the documents, by his present counsel, it was found that certain important facts had been overlooked by the previous counsel and that such facts have to be ascertained through the evidence of the respondent/plaintiff. Unless the said facts are elucidated through his evidence, it would cause unnecessary hardship in deciding the suit, on its merits.
4. The trial Court, by its order, dated 7.12.2009, had dismissed the application filed by the petitioner stating that, on a perusal of the records, it was seen that six witnesses had already been examined on the side of the plaintiff and the counsel for the petitioner had cross examined the witnesses, in full. Only at the stage of the arguments, the learned counsel appearing on behalf of the petitioner had stated that certain documents had to be relied upon and that it was necessary to cross examine P.W.1., on certain aspects that had not been stated earlier.
5. The trial Court had stated that the petitioner had not stated any specific reason in his application for recalling P.W.1. and therefore, the petitioner cannot ask for recalling P.W.1 to be cross examined, once again. The trial Court had also found that the interlocutory application had been filed by the petitioner only to drag on the proceedings in the suit. Therefore, the interlocutory application filed by the petitioner, in I.A.No.960 of 2009, had been dismissed by the trial Court, by its order, dated 7.12.2009.
6. The learned counsel appearing on behalf of the petitioner had submitted that the order passed by the learned Additional District Munsif, Vellore, on 7.12.2009, in I.A.No.960 of 2009, is unsustainable, both in law and on the facts of the case. It had been stated that the Court below had failed to take into consideration the pleadings in the case before passing the order, dated 7.12.2009, dismissing the interlocutory application filed by the petitioner, to cross examine P.W.1. The trial Court had failed to note that P.W.2 was cross examined, on 19.12.2008, and thereafter, the respondent had taken one year, until 7.1.2009, for the chief examination of P.W.3. The present counsel appearing or the petitioner, after filing the vakalat in the month of June, 2009, had cross examined P.W.3 to P.W.6, by 17.8.2009, within a span of two months.
7. The learned counsel appearing on behalf of the petitioner had further submitted that the trial Court had also failed to note that after the petitioner had filed the interlocutory application, under order 18 Rule 17 and Section 151 of the Civil Procedure Code, 1908, in the month of August, 2009, the counsel for the respondent was not available, as he had gone abroad and therefore, the suit had been adjourned from time to time, for the respondent's argument, till the 15 of November, 2009. It had also been stated that the trial Court had failed to notice that only after the exhaustive examination of all the witnesses on behalf of the respondent, certain ambiguities had arisen and therefore, the necessity of recalling P.W.1 had arisen.
8. The learned counsel appearing on behalf of the petitioner had further submitted that the trial Court had failed to notice that P.W.1, was available in the court, on every hearing date, and that the counsel for the petitioner was always ready to cross examine P.W.1, without any delay, if it had been allowed by the trial Court. The dismissal of the interlocutory application filed by the petitioner would only lead to multiplicity of proceedings, since the trial Court, by failing to exercise the powers vested in it, had committed material irregularities and an the error on the face of the record. As such, the order of the learned Additional District Munsif, Vellore, dated 7.12.2009, in I.A.No.960 of 2009, is devoid of merits and therefore, it is liable to be set aside.
9. Per contra, the learned counsel for the respondent had submitted that no proper reasons have been stated by the petitioner for recalling P.W.1. The learned counsel, who was appearing on behalf of the petitioner, earlier, had cross-examined P.W.1, for several days, exhaustively. He had left nothing to be elucidated. The entire cross examination is based on the documents available on record. The petitioner had filed the application only with the mala fide intention of protracting the proceedings in the suit.
10. The learned counsel for the respondent had also stated that the trial Court was right in dismissing the interlocutory application filed by the petitioner, to recall P.W.1, to be cross examined. Hence, the civil revision petition is liable to be dismissed.
11. The learned counsel for the petitioner had relied on the following decisions in support of his contentions:-
11.1. In VADIRAJ NAGGAPPA VERNEKAR (D) THROUGH LRS. & OTHERS Vs. SHARAD CHAND PRABHAKAR GOGATE, (2009-5-L.W.52), it has been held that though the provisions of Order 18 Rule 17 of the Civil Procedure Code, 1908, has been interpreted to include applications to be filed by the parties for the recalling of the 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.
11.2. In MUTHUKARUPPAN @ VELAYUTHAM Vs. SURESH @ MUTHUKARUPPAN, 1999 (III) CTC 491, it has been held that it is clear that it is for the Court, which had an opportunity to see the witness, to find whether further opportunity should be given for examination. A party should not suffer merely because the counsel had omitted to ask certain vital questions. When the power to recall a witness could be exercised by the court and when an applicant shows that the cause is made out for recalling a witness and when the Court finds that the application is filed with bona fides, the same is not liable to be interfered with, under Section 115 of Code of Civil Procedure, 1908.
11.3. In PANDIAN P.S. Vs. ANNAI VELANGANNI FILMS, 2002 (3) CTC 92, this Court had held that "the phrase "good cause", employed under Order XIII, Rule 2, C.P.C., no doubt, requires adequate, sound and genuine reasons, but it depends upon the facts and circumstances of the individual case, as the good cause or sufficient cause, as the case may be, is intended only to ensure the bona fide of the parties who approach the Court for production of the documents at a subsequent stage. Therefore, it is suffice for the Court to find out whether the claim of a person who approaches the Court for production of the documents at a subsequent stage, lacks bona fide or suffers from mala fide. In either case, the test to be adopted is whether the documents relied upon by the party are required to meet the ends of justice.
"Therefore, I am of the considered opinion that the Court, while exercising the power conferred under Order XIII Rule 2, C.P.C., should exercise the same liberally, to meet the ends of justice. Similarly, the same yardstick is equally applicable while exercising the power conferred under Order XVIII Rule 17, C.P.C., because, the said Rule provides for examination of witness only to meet the ends of justice, by enabling the authorities to substantiate their claim. Hence, both the provisions cannot be interpreted rigidly."
11.4. In KRISHNAVENI AND OTHERS Vs. GOPAL PANDITHAR, 2006 (5) CTC 394, this Court had held that it is clear that even after the commencement of the trial, an application for amendment is maintainable. However, it is the responsibility of the party, who had filed such an application, to satisfy the Court that there is bona fide in his application and the same is filed not to delay the trial.
12. The learned counsel appearing for the respondent had relied on the decision, in VADIRAJ NAGGAPPA VERNEKAR (D) THROUGH LRS. Vs. SHARAD CHAND PRABHAKAR GOGATE, 2009 5 L.W. 52, wherein, it has been held that the power to recall any witness, under Order 18 Rule 17 of the Civil Procedure Code, 1908, can be exercised by the Court, either on its own motion or on an application filed by any of the party to the suit. Such a power is to be invoked not to fill up the lacuna in the evidence of the witness, but to clear an ambiguity that may have arisen during the course of his examination. If the evidence of re-examination of the 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 the permission to the defendants to cross examine the witness thereafter. The Supreme Court had relied on its earlier decision in SMT. M.N.AMOKAR AND OTHERS Vs. DR.S.A.JOHARI (1984 2 SCC 354) wherein, the supreme Court, while considering the scope of Article 227 in dealing with an application, under Order 18 Rule 17 of the Civil Procedure Code, 1908, came to a finding that unless the reasons given by the trial Court in rejecting an application, under Order 18 Rule 17 can be said to be moonshine, flimsy or irrational, the rejection of the application cannot be dubbed as suggestive of non-judicial approach or bias or partiality on the part of the trial Court, merely because, in the exercise of its discretion, another Court might have taken a different view and allowed the application.
The decision of the Allahabad High Court, in SUNDER THEATERS Vs. ALLAHABAD BANK, JHANSI, (AIR 1999 ALL.14), it had been stated that the power of the Court, under Order 18 Rule 17 C.P.C., is discretionary and has to be exercised with the greatest care only in exceptional circumstances. Under the garb of this rule, the Court ought not to recall a witness at the instance of a party in order to fill up the lacuna in the evidence already led.
13. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available, and in view of the cases cited above, this Court is of the considered view that the petitioner in the Civil Revision Petition has not shown sufficient cause or reason, to interfere with the order of the learned Additional District Munsif, Vellore, dated 7.12.2009, in I.A.No.960 of 2009, in O.S.No.364 of 2005.
14. The petitioner had not shown specific reasons for recalling P.W.1., as prayed for in the interlocutory application, in I.A.No.960 of 2009. The trial Court had noted that only after the plaintiffs witness had been cross-examined, in full, the petitioner had filed the application to recall P.W.1. The trial Court had also stated that the application had been filed by the petitioner only with the mala fide intention of dragging on the proceedings in the suit.
15. It had also been held that the discretionary power of the Court provided, under Order XVIII Rule 17 of the Civil Procedures Code, 1908, cannot be invoked in the present case, as the petitioner had not shown that a cause is made out for recalling the witness and that it is bona fide in nature. As such, the Civil Revision petition, filed by the petitioner, is devoid of merits and therefore, it is liable to be dismissed. Hence, it stands dismissed. No costs. Consequently, connected M.P.No.1 of 2010 is closed.
lan To The Additional District Munsif Court, Vellore