Madhya Pradesh High Court
Salim Mohammad Sunni vs Chandra Shekhar Sharma on 2 December, 2019
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 MP-5723-2019
THE HIGH COURT OF MADHYA PRADESH
MP-5723-2019
(Salim Mohammad Sunni Vs. Chandra Shekhar Sharma)
Gwalior, Dated : 02-12-2019
Shri D.D. Bansal, counsel for the petitioner.
Shri Shival Sharma, counsel for the respondent.
This petition under Article 227 of the Constitution of India has been filed against the order dated 04.10.2019 passed by the Civil Judge, Class-I, Mungawali District Ashok Nagar in Civil Suit No. 62- A/2019, by which the application filed by the respondent under Section 137 of the Evidence Act read with Section 151 of CPC has been allowed.
It is submitted by the counsel for the petitioner that after the conclusion of the cross-examination of the plaintiff witness, an application under Section 137 of the Evidence Act read with Section 151 of CPC was filed pleading inter alia that some documents, which are already on record could not be exhibited, therefore, the plaintiff may be recalled for getting those documents exhibited. The application was opposed by the petitioner. However, the Trial Court by order dated 04.10.2019 has allowed the application on payment of cost of Rs.100/-.
Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that it is incorrect to say that the application was filed during the crews-examination of the plaintiff witnesses. The plaintiff has also filed a vague application 2 MP-5723-2019 and deliberately did not disclose the details of the documents which were left to be exhibited. It is further submitted that the scope of Section 137 of the Evidence Act is different and the witnesses cannot be recalled for the purposes of getting the documents exhibited.
Per contra, it is submitted by the counsel for the respondents that it is incorrect to say that the application under Section 137 of the Evidence Act was filed after the conclusion of the cross-examination of the plaintiff. In fact, the examination of the plaintiff witness namely Chandra Shekhar began on 18.07.2019, however, the cross- examination could not be completed due to shortage of time and the case was adjourned to 19.08.2019 and on 19.08.2019 also the cross- examination could not be completed as the Court hours were over and, accordingly, the case was adjourned to 18.09.2019. On 18.09.2019 the plaintiff / respondent moved an application under Section 137 of the Evidence Act and, accordingly, it was mentioned in the application that the examination of the plaintiff witness has begun. It is further submitted that only those documents shall be marked as exhibit which are already on record and no new document would be placed on record and, therefore, it cannot be said that the application under Section 137 of the Evidence Act is vague and is not clear.
Heard the learned counsel for the parties.
Section 137 of the Evidence Act reads as under:-
"137. Examination-in-chief.--The examination of a witness by the party who calls him shall be called his examination-in-chief.
3 MP-5723-2019 Cross-examination.--The examination of a witness by the adverse party shall be called his cross- examination.
Re-examination.--The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re- examination."
It is the case of the respondent that some documents could not be exhibited during the evidence of the plaintiff witness Chandra Shekar.
The submission made by the counsel for the respondent would not strictly come within the purview of Section 137 of the Evidence Act as he is not seeking the re-examination to clarify the certain things which have already come on record. However, the Trial Court has exercised its jurisdiction by recalling the witness for the purposes of getting the documents exhibited because in the assessment of the Trial Court, in case, if the plaintiff is not permitted to do so, then he would suffer irreparable loss. Accordingly, it appears that the Trial Court has exercised its jurisdiction under Order 18 Rule 17 of CPC.
Even otherwise, the Supreme Court in the case of K.K. Velusamy Vs. P. Palanisamy reported in (2011) 11 SCC 275 has held as under:-
"11. There is no specific provision in the Code enabling the parties to reopen 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 court 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 reopening of evidence or recall of any witness for further examination or cross-examination, for 4 MP-5723-2019 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 reopen 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."
Accordingly, this Court is of the considered opinion that the Trial Court did not commit any mistake in exercising its jurisdiction in re-summoning the plaintiff witness Chandra Shekar for the purposes of getting certain documents exhibited. However, in the considered opinion of this Court, the application filed under Section 137 of the Evidence Act was vague.
Respondent / plaintiff has not given the details of the documents, which were sought to be exhibited by the plaintiff. It appears that earlier one lease deed was executed by the Trial Court which was challenged by the petitioner on the ground that same is not admissible and, therefore, plaintiff may try to exhibit those documents which are not admissible. Accordingly, the order dated 04.10.2019 is set aside on the ground that the application which was filed by the plaintiff was vague and the Trial Court before deciding the said application should have directed the plaintiff to give the details of the documents sought to be relied upon by the plaintiff.
Accordingly, the plaintiff is granted liberty to file afresh application pointing out the details of the documents, on which plaintiff wants to place reliance and to exhibit the same. It is made clear that no new document shall be permitted to be filed. The 5 MP-5723-2019 application shall include only those documents which are already on record. No documents shall be included in the application if it has already been held to be inadmissible in law. No photocopy of the documents shall be permitted to be included in the application.
With the aforesaid observations, the petition is finally disposed of.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2019.12.04 11:05:23 +05'30'