Madras High Court
Muthukaruppan @ Velayutham vs Suresh @ Muthukaruppan And Two Others on 28 July, 1999
Equivalent citations: 1999(3)CTC491
ORDER
1. Plaintiff in O.S.No. 623 of 1996 on the file of Additional District Munsif's Court. Tuticorin is the revision petitioner in both the revision petitions.
2. Respondents herein filed two applications in I.A.No. 10 and 11 of 1999 to reopen the case and to recall PWs- 1 and 2, who have already been examined, for further cross-examination. It is averred in the affidavit that when these witnesses were in the box, counsel has inadvertantly omitted to put some material questions and the omission was found out only when the present counsel studied the case for arguments. It is alleged that if the witnesses are not allowed to be cross examined further, they will be put to great hardships.
3. Petitioner herein filed serious objections to the applications and stated that the applications are belated and an after thought. It is said that after examination of witnesses were over, several opportunities were given and 11 months after, these applications were filed. He prayed for dismissal of the applications.
4. By the impugned order, lower court allowed those applications and the same is challenged in these revision petitions.
5. I heard the counsel on both sides. Order 18, Rule 17 of Code of Civil Procedure read thus, "Order 18 Rule 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 question to him as the Court thinks fit."
6. In Andichi Ammal v. Periya Muniyandi Moopar, 1994(1)MLJ 514, a learned Judge of this Court took into consideration the divergent and visual opinion in regard to. interpretation of the said rules. The Karnataka High Court in Shankara Bhat v. Bheema Bhat, AIR 1974 Kar. 123 took the view that the power could be exercised only by the Court and Court alone can recall the witness. But, the Calcutta High Court took a different view and held that the recalling of witnesses can be had at the instance of parties also. Both these were considered by the learned Judge and preferred the view of Calcutta High Court and held that even at the instance of parties, witness can be recalled and examined.
7. How is the power exercised? In V.K. Ghosh v. M/s. Voltas Ltd, , learned Judge held thus, "Whether a prayer to recall a witness would be accepted would depend on facts and circumstances of each case and the principle cannot be put in a strait-jacket formula. Presiding Officer with his judicial experience shall exercise the discretion with the ultimate aim that parties get full opportunity to present their cases and the court is able to adjudicate properly."
8. The Court has got full discretion and it is for the trial court to decide whether any further question to be put to witness.
9. In Om Prakash v. Sarupa, , in para 4 of the Judgment, learned Judge said thus, "... A party should not be allowed to suffer for any omission or lapse on the part of his counsel when it relates to the requirement of any law. Moreover, it is well known that the rules of procedure are meant to advance the cause of justice. In civil litigation for the lapse on the part of one party, the other party can be easily compensated by payment of costs....."
In that case, his Lordship said that the omission on the part of counsel to put certain vital questions should not affect the patty.
10. When the power should be exercised came for consideration in the decision reported in Madhubhai Amthalal v. Amthalal Nanalal, AIR 1947 Bom. 156. That is the case where the court wanted to examine a witness and the question was whether that could be ordered when case is reserved for Judgment ? Learned Judge held thus, "...There seems to be very little authority about O. 18, R. 17 and what there is rather of a negative character for I certainly have never heard of a Court exercising its powers under that rule after judgment has been reserved and there is, apparently, no reported instance of its so doing. It seems to me, however, that the powers given by that rule are very wide, and it seems to me desirable that they should be kept wide. It is noticeable that the wording of it is at any stage of a "suit" and not at any stage of a "hearing" and if, therefore, the Court, while considering its judgment found that there was an ambiguity on the face of the record, or an omission which wanted clearing up, I think the Court could, in a proper case, recall a witness, who had given evidence, for that purpose. The highest tribunal in England has more than once reserved judgment and thereafter asked for further argument and it seems to me, that, in my own humbler sphere, I should only be doing the same thing if, in a proper case, I had a witness recalled of my own motion."
11. The above decision is followed by Allahabad High Court in the decision reported in Kulsumun-Nisa v. Ahmadi Begum, .
12. Sir John Woodroffe & Ameer Ali on Commentaries to Code of Civil Procedure, 2nd volume (Third edition - 1988), at page 1869 learned authors said thus, "On a plaint reading of this provision it is obvious that discretion vests in the Court to recall a witness who has been examined earlier at any stage of the suit which would evidently mean any stage before the judgment is pronounced.
So, the discretion vesting in the court under this rule can be exercised even after evidence of the patties has concluded of course it must be exercised judicially and on well accepted judicial principles, and not arbitrarily or capriciously."
13. From the above, it is clear that it is for the Court which had opportunity to see the witness to find whether further opportunity should be given for examination. A party should not suffer merely because the counsel omitted to put certain vital questions. When the power to recall witness could be exercised by court and applicant shows that the cause is made out for recalling witness and the court also 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. In this case, the counsel who cross examined the witness had withdrawn from the case and new counsel when he studied the case found that some material questions were omitted to be asked. Lower Court believed that statement and exercised its discretion in favour of respondent. The discretion exercised by lower court cannot be said as capricious or arbitrary. I find no ground lor interference is made out in the order of lower court.
14. In the result, the revision petitions are dismissed as without any merits. No costs. Consequently, C.M.P.Nos. 3864 and 3865 of 1999 are also dismissed.