Orissa High Court
Sri Bauribandhu Mohanty And Anr. vs Sri Suresh Chandra Mohanty And Ors. on 23 July, 1991
Equivalent citations: AIR1992ORI136, AIR 1992 ORISSA 136
ORDER K.C. Jagdeb Roy, J.
1. In these two Civil Revisions, the petitioners challenged the orders of the Munsif, Jagatsinghpur dated 19-8-89 and dated 9-8-89 respectively rejecting the applications of the plaintiffs to recall P. W. 7 and D.W. 5 for further examination in relation to some admission, made in the compromise petition filed on 5-3-82 but was not acted upon. The Court has rejected the application stating that such applications could not be allowed in view of Section 23 of the Evidence Act (for short 'the Act').
2. The short facts leading to the present Civil Revisions are as follows :
The present petitioners along with Opposite Party No. 3 had filed the suit bearing No. 64 of 1981 before the learned Munsif, Jagatsinghpur against the present Opposite Parties 1 and 2 with a prayer to declare that they had acquired their right of easement in respect of the Schedule-C land of the plaint schedule and to restrain the Opposite Parties by way of injunction not to interfere with their peaceful enjoyment of the said pathway.
2A. While the suit was in progress, with the intervention of gentlemen of the locality, a joint compromise petition was filed by both the parties on 5-3-82 in the suit which was signed by their respective lawyers. Since no sketch map was annexed with the compromise petition, the trial court by the order dated 6-3-82 asked the parties to rectify the defect by 15-3-82. As no such sketch map was filed in compliance with the order dated 6-3-82, the compromise petition was not acted upon.
3. The present petitioner No. 1 was examined himself as P.W. 7. After his evidence was closed, a petition was filed on behalf of the plaintiffs for recalling P.W. 7 under Order XVIII, Rule 17 of the Code of Civil Procedure (for short 'the Code') read with Section 151 of the Code. The impugned order dated 19-8-89 shows that a petition under Order XVIII Rule 17 of the Code was filed by the plaintiffs to recall P.W. 7 for the purpose of exhibiting the joint compromise petition which was rejected by the trial court. Against the said order dated 19-8-89, the plaintiffs have preferred this Civil Revision No. 889 of 1989.
4. The petitioners have also filed another petition to recall D.W. 5 for the same purpose which was also rejected by the trial Court by its order dated 9-8-89 against which order the plaintiffs have preferred Civil Revision No. 890 of 1989.
5. As requested by both the parties, since both the Civil Revisions raise same question of law, both the Civil Revisions were heard together and a common judgment is passed.
6. From the order dated 9-8-89 against which Civil Revision No. 890 of 1989 is filed, it appears that the defendants objected to the petition of the plaintiffs filed under Order XVIII, Rule 17 of the Code read with Section 151 of the Code on the ground that the plaintiffs were not intending to bring any new evidence to the notice of the Court and had failed to cross-examine D.W. 5 on the matters already on record. The purpose of that petition is to delay the hearing of the suit and to harass the defendants. The petitioners also filed at a belated stage. Order XVIII, Rule 17 of the Code which empowers the court to recall and examine the witnesses is quoted below :
"Order XVIII 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 questions to him as the Court thinks fit."
This provision does not entitle a party to recall a witness if he so chooses. The power which is given to the court for allowing a party who wants to recall a witness for the purpose of leading any fresh evidence to the court is contained in Order XVIII, Rule 17A of the Code which is introduced into the Parent Act by amendment of the Code of Civil Procedure (Amendment) Act, 1976, and is quoted below :
"Order XVIII, Rule 17A, Production of evidence not previously known or which could not be produced despite due diligence: Where a party satisfies the Court that after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just."
7. The impugned orders indicate that the applications filed by the plaintiffs to recall D.W, 5 and P.W. 7 were made under Order XVIII, Rule 17 of the Code which obviously is not the prpper proviso under which such applications should have been made. Assuming that these petitions were filed under Order XVIII, Rule 17A, the question arises whether the trial court below was wrong in rejecting the said prayers of the plaintiffs.
8. Section 23 of the Evidence Act reads as follows:
"23. Admissions in civil cases, when relevant: In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.
Explanation : Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under Section 126."
9. In the compromise petition filed on 5-3-82, there is admission of the parties regarding existence of the pathway over C.S. Plot No. 244. In the petition filed in Civil Revision No. 889 of 1989, the petitioners have averred that the compromise petition was filed having been signed by the advocates for both the parties and no sketch map was attached to it as required by the Court. It does not show that the compromise petition was duly signed by both the parties. The compromise petition not having been signed by the parties in accordance with law and having not acted upon, obviously could not be treated: as valid compromise petition intended to be used as evidence in the suit. Assuming however, that the parties had signed the said compromise petition, the question now raised is whether admissions made in such compromise petition which was not acted upon by the parties, can be allowed to be lead in evidence.
10. The Opposite Parties have relied on a decision the Division Bench of the Allahabad High Court in the case of Shib Charan Das v. Gulabchand Chhotey Lal AIR 1936 All 157, wherein the High Court has held thus (at page 158):
"xx xx xx. Negotiations were being conducted with a view to settlement, and that being so, we are bound to hold that these negotiations were conducted 'without prejudice'. In such circumstances it is not open for one of the parties to give evidence of an admission made by another. If negotiations are 'to result in a settlement each side must give away a certain amount. If one of the parties offers to take something less than what he later claims he is legally entitled, such must not be used against him; otherwise could not make offers during negotiations with a view to a settlement, xx xx"
The same view was taken by the High Court of Oudh in the case of Kuar Nageshar Sahai v. Shiam Bahadur, AIR 1922 Oudh 231, where a Division Bench of the Court held follows (at page 234):
"xx xx xx. Parties often willing to make admissions for the purpose of effecting a compromise to which it would be unfair to hold them if the compromise falls through, xx xx xx"
A similar view was also taken in the case of Smt. Surjit Kaur v. Gurcharan Singh, AIR 1973 Punjab & Haryana 18, in which the Court held thus (at page 19):
"xx xx xx. In any case, this letter, admittedly, was written during the period when the compromise talks going on. The inference drawn by the learned Judge from all these circumstances was that the letter was written at a time when the parties had agreed that no evidence would be given regarding it. That being so, the case will be covered by the second condition laid down in Section 23, quoted above, and as such, the husband could claim privilege regarding the same. It has been ruled in a Bench decision of the Allahabad High Court in Shibcharan Das v. Firm, Gulabchand Chhotey Lal, AIR 1936 All 157, that where negotiations were being conducted with a view to a settlement, it should be held that those negotiations were so conducted without prejudice."
From this it follows that where the compromise is not binding on the parties, any recital is of no much value as evidence. The parties are often willing to make admissions for the purpose of affecting a compromise to which it would be unfair to hold them if the compromise falls through.
11. In view of the above discussions, there is no doubt in my mind that the statements made in the compromise petition even if treated as valid admissions, were not intended to be treated as evidence by any of the parties because of failure of the compromise petition. In view of this both the orders dated 9-8-89 and 19-8-89 passed by the learned trial Court in the suit rejecting the petitions for recalling P.W. 7 and D.W. 5 for the purpose of getting the compromise petition exhibited and for getting the admissions on the record, as evidence being contrary to Section 23 of the Act, it justified.
In the result, the Civil Revisions Nos. 889 and 890 of 1989 are dismissed, but in the circumstances, there shall be no order as to costs.