Andhra Pradesh High Court - Amravati
Chekka Suryanarayana, vs Saka Rajulamma, on 3 September, 2021
Author: D.Ramesh
Bench: D.Ramesh
THE HONOURABLE SRI JUSTICE D.RAMESH
CIVIL REVISION PETITION No.472 of 2021
ORDER:
The Civil Revision Petition is filed aggrieved by the orders passed in I.A.No.423/2020 in L.A.O.P.No.02/2014 on the file of the learned Senior Civil Judge, Pithapuram on 25.01.2021.
2. The respondent herein who is the 9th claimant in L.A.O.P.No.02/2014 filed I.A. under Order XVIII Rule 17 and section 151 CPC to recall PW1 for further cross-examination in the areas and documents mentioned. Learned Counsel appearing on behalf of the petitioner has assailed the orders on three grounds. Firstly, the matter is heard twice by the Court below and at that point of time, the application filed under Order XVIII Rule 17 and section 151 CPC cannot be considered by the court below. Secondly, in the I.A. the respondent has not specified the points on which they want to question the PW1. Thirdly and finally, after completing the arguments, to fill up gaps, such applications cannot be entertained and hence the order of the Court below is to be set aside.
3. Learned Counsel appearing for the petitioner in support of his contention relied on paragraph 8 b of the impugned order wherein on perusal of the docket order the Court has mentioned that arguments on the side of claimants 1,3 to 8 and 10 to 12 were heard on 29.10.2019 and arguments on the side of the present petitioner i.e. claimant no.9 were heard on 31.10.2019 and the reply arguments of the respondents 1, 3 to 8 and 10 to 12 were also filed on 05.11.2019. At that point of time the claimant has filed I.A.No.1194/2019 to summon the Sub-Registrar, Tuni to produce their register, and to give evidence and the same was allowed on 10.01.2020. PW5 was cross- 2
DR,J CRP.No.472 of 2021 examined on 06.03.2020 by the then Counsel for the petitioners/claimants and on 13.3.2020 the reply of claimant nos.1,3 to 8 and 10 to 12 were heard and at the request of the claimant no.9. i.e. the petitioner in the I.A., matter was posted for further arguments regarding the evidence of PW5 and due to lockdown on the ground of pandemic, the matter was adjourned from time to time and thereafter on 16.11.2020 filed the present petition. Hence, after hearing the arguments and elaborate trial, this petition is filed only to fill up the gaps.
4. Further learned Counsel has argued that on perusal of the affidavit filed along with the I.A. clearly shows that she has not made any specific points except stating that the expiry of the earlier counsel, the matter is entrusted to the present counsel on his advise only, this petition is filed to recall PW1 which cannot be a ground for filing said applications and the same cannot be allowed in view of the rulings of the Apex Court. To support his contention, learned Counsel has relied on the following judgments.
Ram Rati v. Mange Ram(dead) through legal representatives1in which it is recited that:
The settled legal position under Order XVIII Rule 17 read with Section 151 CPC, being thus very clear, the impugned orders passed by the trial court as affirmed by the High Court to recall a witness at the instance of the respondent "for further elaboration on the left out points", is wholly impermissible in law.
Gayathri v. M.Girish2 wherein it is recited that:
The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. (vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate).
Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision 1 (2016) 11 SCC 296 2 (2016) 14 SCC 142 3 DR,J CRP.No.472 of 2021 enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit he parties to assist it by putting some questions."
And again:
We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the curt is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.
Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. The court should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, reopening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency."
We have referred to the said paragraphs to show the purpose of filing an application under Order 18 Rule 17 of the Code. We may add that though in the said decision this Court allowed the appeals in part, the fact situation, the conduct of the party and the grievance agitated were different. The court also thought it apposite to add a word of caution and also laid down that if the application is mischievous or frivolous, it is desirable to reject the application with costs.
In this context, we may fruitfully refer to Bagai Construction v. Gupta Building Material Store. In the said case the Court had expressed its concern about the order passed by the High Court whereby it had allowed the application preferred under Order 18 Rule 17 that was rejected by the trial court on the ground that there was no acceptable reason to entertain the prayer. Be it stated, this Court set aside the order passed by the High Court. In the said case, it has also been held that it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. That apart, it has also been held that the courts should constantly endeavour to follow such a time schedule so that the purpose of amendments brought in the Code of Civil Procedure are not defeated. Painfully, the Court observed:
... In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in 4 DR,J CRP.No.472 of 2021 exclusive possession of the plaintiff, still the plaintiff has not placed those bills on record. It further shows that final arguments were heard on a number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC.
In the case on hand, as we have stated hereinbefore, the examination-in-chief continued for long and the matter was adjourned seven times. The defendant sought adjournment after adjournment for cross-examination on some pretext or the other which are really not entertainable in law. But the trial court eventually granted permission subject to payment of costs. Regardless of the allowance extended, the defendant stood embedded on his adamantine platform and prayed for adjournment as if it was his right to seek adjournment on any ground whatsoever and on any circumstance. The non- concern of the petitioner-defendant shown towards the proceedings of the court is absolutely manifest. The disregard shown to the plaintiff's age is also visible from the marathon of interlocutory applications filed".
Velugu Eswaramma vs Velugu Shoba Rani3 wherein it is recited that:
Therefore, in conclusion, this Court in these two Civil Revision Petitions holds that the affidavit filed to recall the witness does not meet the standards laid down by the Hon'ble Supreme Court of India in the judgments. The failure to cross-examine the witness on certain aspects by itself is not a ground enough to recall the witness for the purpose of further cross-examination. If this is allowed the gaps will be filled up. The entire branch of developed case law of the highest courts in the country, including the Hon'ble Supreme Court of India, on the failure to cross-examine a witness etc., will be set at naught, if every witness is recalled on such tenuous grounds. The grounds to reopen the matter are also similar in this case. They are not enough to reopen the case. For all these reasons, this Court holds that both the Civil Revision Petition do not have any merits whatsoever.
5. Reply to the said contentions, the learned Counsel appearing on behalf of the respondents has taken an objection with regard to the maintainability of the revision petition. The court below has allowed the I.A on condition of payment of costs of Rs.3,000/- and accordingly, the petitioner herein has accepted the said costs. In view of the same, he is not entitled to file the present revision.
6. On merits, it is submitted that though the arguments are at the advances stage, but after expiry of the previous counsel, the matter has been entrusted to the present counsel and the counsel has specifically stated that on perusal of the documents i.e. Ex.A1 to A11 3 2019 SCC Online AP 14 5 DR,J CRP.No.472 of 2021 and A19 and also the evidence of PW1 and PW2, there are no relevant questions with regard to the word acquired land by taking permission of the Tuni municipality under Ex.A3. Hence the present application is filed which is an important question needs clarification from PW1. Hence, the present application is filed.
7. It is further submitted that the application under Order XVIII Rule 17 CPC could be filed at any point of time. There is no bar or prohibition in the provision of the CPC that after completing the evidence and when the matter was at the arguments stage, this application could not be entertained. Infact the same was clarified by the Hon'ble Supreme Court in various judgments. It is for the Court below to consider the said applications whether it is relevant or not on facts. In the instant case, the Court below has considered the said aspect and has given finding with regard to the relevancy. The Court below while deciding the I.A. on perusal of evidence of PW1 and after finding that this aspect was not cross-examined on the aspect of identification of the disputed property. Hence to establish the same and to decide the litigation, the court below has allowed the said application.
8. He further submits that as per the rulings of the Hon'ble Supreme Court, there is no necessity to file separate application for reopening the trial. Even before the pronouncement of the judgments, there is no necessity to file an application for reopen.
9. To support his contention he relied on the following judgments.
K.K.Velusamy vs. N.Palanisamy4 wherein it is recited that:
Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the 4 2011(2) Supreme 667 6 DR,J CRP.No.472 of 2021 law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate - 2009 (4) SCC 410]. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in- chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.
9. There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.
Mahadev Govind Gharge vs. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka5 wherein it is recited that:
Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold. We have already noticed that there is no indefeasible divestment of right of the cross-objector in case of a delay and his rights to file cross-objections are protected even at a belated stage by the discretion vested in the Courts. But at the same time, the Court cannot lose sight of the fact that meaning of `ends of justice' essentially refers to justice for all the parties involved in the litigation. It will be unfair to give an interpretation to a provision to vest a party with a right at the cost of the other, particularly, when statutory provisions do not so specifically or even impliedly provide for the same. The provisions of Order XLI Rule 22 of the Code are akin to the 5 2011(3) Supreme 665 7 DR,J CRP.No.472 of 2021 provisions of the Limitation Act, 1963, i.e. when such provisions bar a remedy, by efflux of time, to one party, it gives consequential benefit to the opposite party.
Before such vested benefit can be taken away, the Court has to strike a balance between respective rights of the parties on the plain reading of the statutory provision to meet the ends of justice. If a cross-objector fails to file cross-objections within the stipulated time, then his right to file cross-objections is taken away only in a limited sense. To that extent a benefit is granted to the other party, i.e. the appellant, of having their appeal heard without such cross-objections. Still, however, if the Court is of the opinion that it is just and proper to permit the filing of cross-objection even after the expiry of the statutory limitation of one month, it is certainly vested with power to grant the same, but of course, only after hearing the other party. That is how the rights of the parties are to be balanced in consonance with the scheme of Order XLI Rule 22 of the Code.
Amar Singh vs. Perhlad6 wherein it is recited that:
"Whenever costs are accepted under protest, it always shows that the person concerned has not acquiesced in the order. His non- acquiescence is only for showing that the order could be challenged at a subsequent stage as otherwise there can be hardly any purpose for raising a protest before receiving the payment.
The crux of the matter to be seen is as to what the petitioner did and not what he said. By acceptance of costs, he accepted the order as correct. He has taken benefit of the order. He cannot now turn around and say he will also challenge the order. By allowing him to challenge the order would amount to nullifying the effect of acceptance of costs. In such circumstances, he cannot approbate and reprobate. His own act would estop him. At the most it can be said that the petitioner had two options, one to accept the costs and to treat the order as correct, the other not to accept the costs and to challenge the same in revision. He having elected to accept the costs, he exercised his choice in accepting the order as correct. His lodging the protest in such circumstances is meaningless."
10. Learned Counsel for the petitioner has submitted that the petitioners have received the costs on protest and the cost is not a conditional precedent in the impugned order. Hence the ratio decided by the Punjab and Haryana Court reported in Amar Singh vs. Perhlad (referred supra) was interpreted by the Hon'ble Apex Court in Bijendranath Srivatsava v. Mayank Srivastava7 wherein it is recited that:
6
1989 AIR (P&H) 229 7 (1994) 6 SCC 117 8 DR,J CRP.No.472 of 2021 That apart the principle of estoppel which precludes a party from assailing an order allowing a petition subject to payment of costs where the other party has accepted the costs in pursuance of the said order applies only in those cases where the order is in the nature of a conditional order and payment of costs is a condition precedent to the petition being allowed. In such a case it is open to the party not to accept the benefit of cost and thus avoid the consequence of being deprived of the right to challenge the order on merits. The said principle would not apply to a case where the direction for payment of costs is not a condition on which the petition is allowed and costs have been awarded independently in exercise of the discretionary power of the court to award costs because in such a case the party who has been awarded costs has no opportunity to waive his right to question the validity or correctness of the order. The decision of the Andhra Pradesh High Court in Metal Press Works Ltd. v. Guntur Merchants Cotton Press Co. Ltd. 3 on which reliance has been placed by the High Court, proceeds on the basis that awarding of costs was, in fact and substance, a part of the entire order allowing amendment in written statement and the said order was a conditional one. The decision of the Madras High Court in Sree Mahant Prayag Dossjee Varu v. Raja Venkata Perumal4 and the decisions of the Patna High Court in Ramcharan Mahto v. Custodian of Evacuee Property5 and Kapura Kuer v. Narain Singh6 on which reliance has been placed in the said judgment of the Andhra Pradesh High Court also emphasise that the orders under challenge were conditional orders and payment of costs was a condition precedent to allowing the petition. In J.
Devaiah v. Nagappa7, the order allowing amendment of the election petition contained a direction regarding payment of costs. It was held that the application was allowed 3 AIR 1976 AP 205: (1975) 1 APLJ (HC) 283 4 AIR 1933 Mad 410: 1932 MWN 11 18: 142 IC 903 5 AIR 1964 Pat 275 1964 BUR 291 6 AIR 1949 Pat 491 27 Pat 187 7 AIR 1965 Mys 102 without any condition and that the order was not a conditional order and principle of estoppel was held inapplicable.
19. A perusal of order dated 8-5-1976 shows that the said order is not a conditional order. The Civil Judge, after considering the merits has allowed the proposed amendments. The costs were awarded not as a condition precedent to allowing the amendment but by way of exercise of the discretionary power of the court to award costs to the opposite party. It may also be mentioned that the appellants did not accept the said order dated 8-5-1976. They assailed the validity of the same at the stage of final hearing before the trial court but the said contention was rejected by the Additional District & Sessions Judge on the view that the said order had become final as regards the proceedings before him and the same could not be recalled or reviewed. Thereafter, the appellants assailed the correctness of the order dated 8-5-1976 in the appeal filed by Respondents 1 and 3 in the High Court. The principle of estoppel arising from acceptance of costs so to preclude the appellants from challenging the validity of the order dated 8-5-1976 cannot, therefore, be invoked in the facts and circumstances of the present case. Since the grounds given by the High Court for upholding the order dated 5-5-1976 cannot be affirmed the amendments allowed by the said order insofar as they relate to insertion of paragraphs 52 and 53 in the objection petition filed by Respondent 14 are set aside 9 DR,J CRP.No.472 of 2021 Hence in view of the observations of the Hon'ble Apex Court when the order is not a conditional precedent, there is no estoppel against the petitioners to file a revision in the instant case, the order is not a conditional precedent. There is a separate order. On merits, the court below has allowed the application and PW1 can be recalled for the purpose of cross-examination by the petitioner/claimant no.9 and directed the petitioner/claimant to pay a sum of Rs.3,000/- costs to PW1. Hence the order cannot be construed as a condition precedent. The orders are separatable. Hence the contention raised by the respondents is not applicable to the present case. Further he submitted that in an identical case, the High Court of Telangana at Hyderabad has distinguished in Gangisetty Vijaya Kumar vs. Potti Ayyanna and others8 wherein it is recited that:
This aspect of the matter stands clarified by the Supreme Court by making a specific reference to the judgment of this Court in Bijendra Nath Srivastava's case (cited supra), by drawing a distinction in paras 20 and 21. Applying the analogy laid down by the Supreme Court in the above-referred judgment, if one examines the order impugned, the same does not indicate that the amendment was ordered on the condition of the respondent - plaintiff paying costs but the learned Judge had allowed the Petition to reopen the case for adducing evidence of the witness and in the process, had awarded the costs. In other words, allowing the petition is not conditional upon payment of costs. In that view of the matter, awarding of costs not being conditional, mere acceptance of the costs by the petitioner - defendant does not deprive him of his right to question the order.
11. Considering the rival submissions made by both the counsel with regard to the objection raised by the counsel for respondents, on perusal of the orders in Amar Singh vs. Perhlad (referred to supra) the court has categorically held that once the costs are accepted and it is nothing but admitting the correctness of the order. Once he accepted the correctness of the order, the said party is not entitled to assail the said orders is act of acceptance of the costs estopped him 8 2018 SCC Online Hyd 457 10 DR,J CRP.No.472 of 2021 to oprobate and reprobate. Once he exercise the choice for acceptance of the costs, they are estopped to assail the said orders and the said judgment was interpreted by the Hon'ble Apex Court in Bijendranath Srivatsava v. Mayank Srivastava (referred to supra) and accepted the same principle and held that allowing the amendment could not be assailed so that the said order was subject to payment of costs and hence when the costs were already been accepted by the parties, there they are estopped from challenging the amendment. But whether there are two orders the contention of estoppel was raised in the other order is not accepted, and further held that whether the order is in the nature of conditional order and payment of costs is a condition precedent while allowing the petition in such a case it is open for the party not to accept the benefits of the costs.
12. In the impugned order paragraph no.9 reads as follows:
In the result, the petition is allowed, directing the petitioner/claimant no.9, to pay a sum of Rs.3,000/-, as Costs to PW1, on or before 08.02.2021, failing which, the present petition shall stand dismissed.
On perusal of the above said paragraph, manifestly establishes that the petition is allowed on payment of costs to PW1, on or before 08.02.2021, failing which, the present petition shall stand dismissed hence the order is a condition precedent. Once the order is condition precedent, the acceptance of costs whether it is protest or without protest makes no difference as per the ratio decided by the Hon'ble Supreme Court in Bijendranath Srivastava v. Mayank Srivastava (referred to supra).
13. On perusal of the affidavit filed in I.A. and also the impugned order, the court below has considered all the aspects including the 11 DR,J CRP.No.472 of 2021 evidence of PW1, the court feels that PW1 was not cross-examined with regard to identification of the disputed property. Hence the application is allowed. No doubt, the ruling of the Apex Court clearly stated under Order XVIII Rule 17 CPC the power is a discretionary and should be exercised sparingly. And for very purpose of Order XVIII Rule 17 CPC is to enable the courts to clarify the doubts if any about the evidence. So that it can be questioned and elicited answers. Here also the court below found that PW1 was not cross-
examined with regard to the identification of disputed property. Hence on merits the court below has allowed while exercising the discretion under Order XVIII Rule 17 CPC.
14. In view of the above, there are no merits in the revision.
15. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.
As a sequel thereto, the miscellaneous petitions, if any, pending in this Civil Revision Petition shall stand closed.
________________ JUSTICE D. RAMESH Date: 03.9.2021 RD 12 DR,J CRP.No.472 of 2021 THE HONOURABLE SRI JUSTICE D.RAMESH CIVIL REVISION PETITION No.472 of 2021 Dated 03.9.2021 RD