Calcutta High Court (Appellete Side)
Ishwari Prasad Shaw vs M/S. Bibhuti Bhusan Dutta on 21 February, 2012
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Dipankar Datta
C.O. 414 of 2012
Ishwari Prasad Shaw
Versus
M/s. Bibhuti Bhusan Dutta.
For the petitioner : Mr. Shyamal Chakraborty, Advocate
Mr. Bhusan Jain, Advocate
Mr. Subhabrata Basu, Advocate
For the opposite party : Mr. Jaydeep Kar, Advocate
Mr. Siddharta Ghosh, Advocate
Heard on : February 13 & 15, 2012
Judgment on : February 21, 2012
1.The defendant in a suit for recovery of possession is the petitioner in this revisional application under Article 227 of the Constitution. It is directed against order dated January 19, 2012 passed by the learned trial Judge, whereby a petition dated January 9, 2012 filed by the plaintiff seeking recall of PW-1 for proving the minutes of the meeting dated January 8, 2005 of the plaintiff has been allowed with cost of Rs. 500/- to be paid to the defendant as condition precedent and February 17, 2012 fixed for further evidence of PW-1 on recall.
2. A deed was executed by and between the plaintiff and the defendant in terms whereof the latter was granted lease in respect of the suit property for 21 years commencing from January 1, 1987 and expiring on December 31, 2007. The lease having expired, the plaintiff called upon him to vacate and deliver possession of the suit property. Since possession was not vacated, the plaintiff instituted the suit.
3. The plaint was signed by Sri Pradyut Kumar Dutt. The affidavit accompanying the plaint was sworn by Sri Dutt claiming himself to be a director of the plaintiff. It was also stated that he was competent to swear the affidavit on behalf of the plaintiff.
4. The defendant has been contesting the suit by filing a written statement. Although he denied and disputed the material allegations in the plaint directed against him, he did not challenge the authority of Sri Dutt to sign the plaint and to swear the affidavit on behalf of the plaintiff.
5. The suit reached the stage of witness action. Sri Dutt, PW-1, filed examination-in-chief on affidavit on behalf of the plaintiff. In such affidavit too, Sri Dutt claimed that he is a director of the plaintiff and competent to swear it. In course of cross-examination, the defendant challenged the authority of Sri Dutt to act on behalf of the plaintiff.
6. After cross-examination was concluded, arguments commenced. It was at this stage that the application, which has been allowed by the impugned order, was filed verified by Sri Dutt. It was stated in such application that by a resolution dated January 8, 2005, Sri Dutt had been authorized by the plaintiff to represent it in any Court case and to appear before any Court and to sign his name on behalf of the plaintiff. The resolution dated January 8, 2005 was annexed thereto. It was also stated that in the deed of lease that was executed by and between the plaintiff and the defendant, Sri Dutt had signed as witness and in his presence the deed was executed. It was also stated that through omission and oversight, the board resolution had not been filed earlier.
7. The application was opposed by the defendant by filing a written objection. It was urged that the application for recall is not maintainable in law. According to the defendant, recall of witness is not permissible to fill up lacuna in the evidence and, therefore, the prayer ought to be declined.
8. The learned Judge was of the view that Sri Dutt in his affidavit accompanying the plaint had stated that he is a director of the plaintiff and that the minutes dated January 8, 2005 proposed to be filed before the Court may prove the statement made in such affidavit. For proper adjudication of the suit and to give finality to the litigation, the learned Judge expressed that the correctness of the claim of the PW-1 that he is authorized to represent the plaintiff has to be assessed and that if the minutes dated January 8, 2005 is received in evidence, the defendant would not be prejudiced as he would get the opportunity to cross-examine the PW-1 on such point. Based on such reasoning, the order impugned in this application came to be passed.
9. Mr. Chakraborty, learned advocate representing the defendant contended that the learned Judge acted illegally in the exercise of his jurisdiction in passing the order dated January 19, 2012.
10. It was contended that the power conferred by Order 18 Rule 17, Civil Procedure Code is not to be invoked to fill up the lacuna in the evidence of the witness, which has already been recorded, and that such power is to be exercised sparingly and in an appropriate case and not merely on the ground that recall and re-examination of the witness would not cause any prejudice to the parties. Reliance in this connection was placed on the decision of the Supreme Court reported in (2009) 4 SCC 410 [Vadiraj Naggappa Vernekar (D) through LRS. v. Sharad Chand Pravakar Gogate].
11. He further submitted that the application for recall of witness reflects inconsistent stands of the plaintiff. He referred to paragraph 4 thereof where it was contended that the defendant had not raised any issue with regard to the authority of Sri Dutt to sign the plaint and represent the plaintiff and that for the first time such issue was raised in course of cross- examination, thereby tending to suggest that that was the reason for non- production of the minutes dated January 8, 2005, whereas in paragraph 6, omission and oversight of the plaintiff was cited as the cause for its non- production. In view of such inconsistent stands, he appealed to the Court not to believe the version of the plaintiff.
12. He also urged that a right that has accrued in favour of the defendant cannot be allowed to be scuttled by extending opportunity to the PW-1 to be re-examined on recall. The decisions reported in AIR 2005 Andhra Pradesh 178 (Macha Gangadhar v. Macha Gangaram), AIR 2006 Himachal Pradesh 61(M/s Lal Chand Ram Krishna v. Rajesh Thakur) and AIR 2003 Himachal Pradesh 158 (Soma Devi v. Guin Devi & ors.) were relied on in support of his submission that the learned Judge exercised discretion erroneously in granting the prayer of the plaintiff. He, accordingly, prayed for an order to set aside the impugned order.
13. Per contra, Mr. Kar, learned advocate for the plaintiff contended that the learned Judge acted within the limits of his jurisdiction and no case for interference under Article 227 of the Constitution has been set up by the defendant. According to him, the defendant having no defence in the suit has made an attempt to challenge the authority of Sri Dutt despite being fully aware of the fact that he is a director of the plaintiff and that as such director, he was a witness to the lease deed by and between the parties, which was executed in his presence. It was further contended that in the written statement the defendant did not challenge the authority of Sri Dutt and it is only at a belated stage that challenge to his authority was thrown. Reference was made to Section 138 of the Evidence Act, which permits re- examination, for explaining matters referred to in cross-examination. By placing reliance on the decisions of the Supreme Court reported in (1999) 8 SCC 649 (Rammi alias Rameshwar v. State of M.P.), (2003) 1 SCC 49 (Salem Advocate Bar Asociation, T.N. v. Union of India) and (2011) 11 SCC 275 (K.K. Velusamy v. N. Palanisamy), it was contended by him that the course of action adopted by the learned Judge is unexceptionable.
14. While referring to the decision in Vadiraj (supra), it was submitted by Mr. Kar that the said decision does not stand in the way of granting the prayer of the plaintiff. The attention of the Court was drawn to the penultimate paragraph of the decision, wherein it was held that an order in terms of Order 18 Rule 17 of the Code to recall any witness may be passed to clear any ambiguity that may have arisen during the course of his cross- examination. According to him, the learned Judge had rightly allowed the prayer for recall to enable Sri Dutt, being the PW-1, to clear the ambiguity that may have arisen in respect of his authority to represent the plaintiff and, therefore, the order impugned does not warrant interference.
15. He also submitted that the decisions of the Andhra Pradesh and Himachal Pradesh High Courts referred to by Mr. Chakraborty do not have any application in the facts of the present case, having regard to clear pronouncement of law on the subject by the Supreme Court in the decisions cited by him as well as in Vadiraj (supra).
16. He, accordingly, prayed for dismissal of the revisional application.
17. This Court has heard learned advocates for the parties and examined the order impugned in the light of the materials on record and the decisions of the Supreme Court referred to by them. The only point that calls for an answer is, whether the learned Judge was justified in ordering recall of the PW-1 for proving the minutes of the meeting dated January 8, 2005 or not.
18. Since the field is covered by the decisions of the Supreme Court, this Court considers it prudent to seek guidance therefrom instead of the High Court decisions referred to by Mr. Chakraborty.
19. On reading the decisions of the Supreme Court that have been cited before this Court, it is clear that the trial Court before exercising discretion conferred by Order 18 Rule 17 of the Code must satisfy itself that the evidence is necessary to be adduced on recall of a witness to clear any ambiguity that may have arisen during the course of his examination and it is necessary for a just and effective adjudication of the rival claims. However, care and caution must be exercised to ensure that no evidence is adduced on recall travelling beyond the pleadings or it is not an attempt to fill up the lacuna in the evidence that has earlier been adduced or is not part of a dilatory strategy to kill time. In appropriate cases, the Court may recall a witness in exercise of its inherent power saved by Section 151 of the Code too since such power is not affected by the express power conferred by Order 18 Rule 17 thereof. Needless to observe that while allowing an application for recall, the trial Court must be alive to the delay that is likely to be caused in concluding the proceedings and may consider the desirability of awarding appropriate costs to the party suffering the order of recall of witness. It is, therefore, clear that an order for recall of a witness is not to be allowed as a matter of course but such order must, having regard to the facts and circumstances of each particular case, involve serious exercise of discretion and rest on sound principles of reason and justice.
20. The contentions raised by Mr. Chakraborty are based on technicalities and have failed to impress this Court. Production of additional evidence is permitted by the Code even at the appellate stage, provided the condition(s) therefor are satisfied. In the present case, the arguments have only commenced. The plaint apparently conforms to the requirements of Order 29 Rule 1 of the Code. In the considered view of this Court, the plaintiff has sufficiently explained the reason for non-production of the minutes of the meeting dated January 8, 2005. The PW-1 was sought to be discredited in course of cross-examination, without there being a specific claim in the written statement that he was not authorized to sign the plaint and represent the plaintiff. Although a general plea that the suit is not maintainable appears to have been raised therein, the defendant never chose to challenge the authority of Sri Dutt to represent the plaintiff. If indeed a specific claim to this effect had been raised in the written statement, the situation could have been otherwise, for, in such a case different considerations would arise. Even after the minutes of the meeting dated January 8, 2005 is received in evidence, the defendant would have the liberty of persuading the learned Judge to exclude the same from his consideration.
21. The discretionary power of the Court, it is settled law, is not to be exercised in a manner to do that which is prohibited by law or by the provisions of the Code. Section 138 of the Evidence Act provides for the order of examination and permits re-examination. Re-examination may be allowed after cross-examination is over but before arguments are commenced. Order 18 Rule 17 of the Code, however, clears the position by empowering the Court to recall a witness at any stage of a suit. The authorities cited before this Court have interpreted Order 18 Rule 17 to include the power of the trial Court to pass an order thereunder even on an application made by a party to the suit, despite the language of Rule 17 tending to restrict such exercise of power to cases where the trial Court considers suo motu exercise to be the need of the proceedings at hand. The order impugned neither fouls any provision of law nor has arbitrary exercise of discretion been demonstrated. On the contrary, it has been passed upon due consideration of all the materials and for the purpose of advancing the cause of justice. The same is, accordingly, upheld.
22. The revisional application stands dismissed, without order for costs.
Photostat certified copy of this judgment and order may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)