Madras High Court
Andichi Ammal And Anr. vs Periya Muniyandi Moopar on 1 December, 1993
Equivalent citations: (1994)1MLJ514
Author: Pratap Singh
Bench: Pratap Singh
ORDER Pratap Singh, J.
1. This civil, revision petition is directed against the order passed in I.A. No. 1078 of 1993 in O.S. No. 229 of 1983 on the file of District Munsif, Aruppukkottai.
2. Short facts are : The respondent has filed a suit for declaration and title and for recovery of possession and damages. That was resisted by the petitioners. After elaborate trial, the trial court decreed it. The petitioners took it on appeal. Learned appellate Judge had allowed the appeal, set aside the judgment and decree of the trial court and remitted the case back to the trial court for fresh disposal according to law giving liberty to parties to take some fresh witnesses and fresh documents. Thereafter, the respondent had filed a petition under Order 18, Rule 17, C.P.C., praying to recall D.W. 1 for further cross-examination. That was opposed by the petitioners. After hearing both parties, the learned District Munsif had allowed the petition. Aggrieved by the said order, this revision has been filed.
3. Mr. S. Natarajan, learned Counsel appearing for the petitioners would submit that (1) the provisions of Order 18, Rule 17, C.P.C., can be invoked only court and not by the party; (ii) no reasons are given in the affidavit in support of the application as to why D.W. 1 should be further cross examined; and (iii) the scope of remand does not go beyond examination of fresh witnesses and adducing fresh documents and not for recalling witnesses already examined.
4. I have carefully considered the submissions made by Mr. S. Natarajan. To consider his submission No. (i), Order 18, Rule 17 need extraction. It reads as follows:
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.
It is apparent that recalling of a witness at any stage is the inherent power of the court. In Shyamapada Neogy v. A.A. Biswas 71 C.W.N. 747, the Calcutta High Court had occasion to consider Order 18, Rule 17, C.P.C. In it the learned Judge had held as follows:
No doubt, the court can invoke its power under Order 18, Rule 17, even at the instance of a party. But that it can do, in its discretion, when an unforeseen situation has developed or even when an inadvertent omission is there, provided that it causes no surprise or prejudice to the other party.
In Shankara Bhat v. Bheema Bhat A.I.R. 1974 Karn. 123, the learned single Judge has given his view as follows:
However, the said rule, in my opinion, makes it abundantly clear that the right to put questions to the witness recalled under Rule 17 is given only to the court and even cross-examination is not ordinarily permitted on the answers given to such questions, without the leave of the court. Under that rule therefore, a witness cannot be recalled at the instance of a party for the purpose of examining, cross-examining, or re-examining, and that rule is not intended to serve such purpose, and the purpose for which that rule can as invoked is the one that is indicated above.
With respect, I do not agree with the view of the learned Judge. With respect, I am in full agreement with the view expressed in Shyamapada Neogy v. A.A. Biswas 71 C.W.N. 747. Hence, I do not accept the submission made by Mr. Natarajan that the provisions of Order 18, Rule 17, C.P.C., can be invoked only by the court and not by the party.
5. Regarding submission No. (ii), that no reasons are given in the affidavit in support of the application as to why D.W. 1 should be further examined, I shall refer to the relevant allegations made in the said affidavit. In para. 3 of the affidavit it is stated that the case has been remitted back by the appellate court for further trial and in order to prove this case and to bring forth certain facts and place it before the court D.W. 1 is to be recalled. The affidavit gives out for what purpose D.W. 1 was sought to be recalled. At this juncture, I would like to point out that the appellate court had remitted the case back to the trial court and had given opportunity to adduce fresh evidence by examining fresh witnesses and filing fresh documents. That docs not mean that no fresh evidence by cross-examining the witness already examined was ruled out. When the matter is pending before the trial court for fresh disposal giving liberty to both parties to adduce fresh evidence will have to be adduced. It can be in the shape of fresh witnesses and documents and as well by eliciting further evidence from the witnesses already examined. In para. 13 of the judgment, the appellate court has pointed out that the judgment is to as rendered regarding the land, which was owned by late Perumal Mooparand for fixing the past profits and the trial court has to give finding after considering the documents and evidence in that regard. That would mean that the evidence already available was not sufficient and so the order of remand was made. In that background, the allegations made in the affidavit in support of the application is to be considered and while so, I cannot accept the submission that no reasons are given in the affidavit in support of the application as to why D.W. 1 should be recalled. Regarding submission No. (iii), as I have already pointed out, there is no bar imposed by the appellate court, for recalling and examining the witness already examined. Emphasis is to adduce fresh evidence for the purpose of determining the point in issue between the parties. While so, I am clear that evidence cannot be shut out during trial on technical ground.
6. Since none of the submissions made by Mr. Natarajan finds acceptance with me, this revision petition, which docs not have merits, does not deserve admission and shall stand dismissed.