Gujarat High Court
Renukaben Devidas Patel Wd/O Devidas ... vs Tushar Devidas Patel on 8 May, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/4714/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4714 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI Sd/-
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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RENUKABEN DEVIDAS PATEL WD/O DEVIDAS RATILAL PATEL & 1
other(s)
Versus
TUSHAR DEVIDAS PATEL & 2 other(s)
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Appearance:
MR JA ADESHRA(107) for the Petitioner(s) No. 1,2
MR PARTHIV A BHATT(5331) for the Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 08/05/2019
ORAL JUDGMENT
1. The present petition is filed under Articles 226 and 227 of the Constitution of India for the purpose of quashing and setting aside the order below Exh.98 dated 8.2.2019 passed by the learned Court No.11 Page 1 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT of City Civil Court, Ahmedabad in Civil Suit No.755/2009.
2. The premise on which the present petition is brought by the original defendants No.1 and 4 is that respondent No.1, who is the original plaintiff of civil suit filed against his widow mother and 3 sisters in the City Civil Court, Ahmedabad claiming right in Bungalow No.6A, Kumkum Society, Near Sardar Patel Colony, Stadium Road, Ahmedabad originally owned by Devidas Ratilal Patel, by making an assertion that this property in question is a property of Devidas Ratilal Patel who executed a Will dated 23.12.2002 wherein he bequeathed his aforesaid property to his 3 sisters viz., Patel Kinnari Deepakbhai, Patel Paulomi Hemant and Dipaben Devidas in equal share. The said Devidas Ratilal Patel died on 29.6.2008 and as per the his Will, the aforementioned 3 daughters became joint owners of Bungalow No.6A, Kumkum Society i.e., the suit property.
3. The respondent Nos.2 and 3 are the joint owners of the said bungalow, however, they have been joined, as respondent Nos.2 and 3, as they are presently residing in USA Page 2 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT and it was not possible to obtain their signature on Vakalatnama or to secure Power of Attorney. It is the case of the petitioner that at the stage of recording of evidence in the aforesaid suit, Maneklal Trivedi and his Wife Sharmishtaben are the witnesses in the Will dated 23.12.2002 executed by deceased Devidas Ratilal Patel. Mr.Bipinchandra Maneklal Trivedi, one of the witness had submitted his affidavit of examination in chief on 6.7.2017 at Exh.97. The original Will was produced on record of the proceedings, however, during the course of recording evidence, witness Bipinchandra Maneklal Trivedi was not shown original Will, and as such, the signature could not be identified. It is further case of the petitioner that though said Bipinchandra Maneklal Trivedi had specifically stated in his deposition that if original Will is shown to him, he would be able to identify his signature. The cross examination was also completed on 22.8.2017, but the original Will was not shown. The petitioner has invoked extra ordinary jurisdiction by asserting that it is not necessary to show the original will to Bipinchandra Maneklal Trivedi. As a result Page 3 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT of this, an application was submitted at Exh.98 for recalling the said Bipinchandra Maneklal Trivedi and only for the purpose of identifying his signature and the signature of his Wife, a request for recalling was made. However, according to the petitioner, though the same was not to fillup lacuna, the learned Judge misconstrued the relevant provisions of the Code of Civil Procedure and rejected the request for recalling of witness by passing an order on 8.2.2019, which is made subject matter of the present petition.
4. The Court issued notice originally on 6.3.2019 and pursuant to which, hearing took place in which Mr.J.A. Adesara, learned advocate has represented the petitioner and whereas, Shri B.B. Naik, learned Sr. Counsel appearing with Mr.P.A. Bhatt, learned advocate has represented the concerned respondent/s.
5. Mr.J.A. Adesara, learned advocate appearing for the petitioner has vehemently contended that the learned Judge has misconstrued the provisions contained under Order 18 and has adopted a Page 4 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT too technical approach. It has been submitted that the cross examination was concluded, but in view of the fact that it was specifically mentioned by that witness only that if original Will is shown, he could identify the signature and as such for that very purpose alone, the original document ought to have been permitted. This approach, which has been adopted by the Court below is too technical in nature, and the said order in question is nothing but a serious error in exercise of discretion. Accordingly, the order in question requires to be corrected. He has further contended that in the entire suit proceedings, controversy has encircled towards the Will which has been executed and if this application is not granted, serious prejudice will cause to the defence. As a result of this, learned Judge ought to have consider the request. He has further contended that the reasons which are assigned by the Court below are also not germane to a valid exercise of discretion. On the contrary, by a laconic order, the right is sought to be created of otherside. As a result of this, instead of adopting a technical approach, the learned Judge ought to have considered the Page 5 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT request. It has been further submitted that there is no much delay in preferring an application, since the cross examination was concluded on 22.8.2017 and immediately within a period of 1 month only, without any undue delay, application was given. Hence, the order in question is not based upon a sound exercise of discretion. He has further submitted that it is settled position of law that when a substantial justice is pitted against the technical consideration, substantial justice must be given predominance. Hence, the impugned order deserves to be corrected. It has been further submitted that it cannot be said in any manner that for the purpose of filling up lacuna, an application is given. On the contrary, it would more amplify deposition of a witness who happened to be one of the attesting signatories to the Will. It has been further submitted that this recalling of witness is not for the purpose of production of any new evidence, since undisputedly, the original copy of Will was very much part of the record. Hence, no new evidence was to be created as well. Hence, the reasons assigned by the learned Judge are not justifiable in the eye of Page 6 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT law. It has been further submitted that there is no lack of bonafides. On the contrary, the Will in question is a part of the record and was not sought to be produced afresh. Merely, because at a relevant point of time, the advocate representing may have forgotten to put relevant question pertaining to Will, but the same may not be allowed to permanently damage the defence of the petitioner. As a result of this, instead of adopting any technicality, the Court ought to have adopted a pragmatic view.
6. For the purpose of substantiating his submissions, learned advocate Mr.Adesara appearing for the petitioner has relied upon two decisions viz., one by the Apex Court and another by the High Court of Gujarat, reported in 2009(4) SCC 410 and decision dated 4.12.2012 in Special Civil Application No.7036/2012 respectively. By referring to the relevant paragraphs of the said decisions, a contention is raised that in a situation like this, the learned trial Judge ought to have considered the request and if this be allowed, there is no serious prejudice likely to be created Page 7 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT against the original plaintiff. Hence, the procedural requirements ought not to have been given a way to prejudice the defence. No other submissions have been made.
7. To meet with the stand taken by learned advocate for the petitioner, Mr.B.B. Naik, learned Sr. Counsel appearing with Mr.P.A. Bhatt, learned advocate for the respondent has contended that while exercising discretion, the learned Judge has perfectly maintained peripheral discretion which is to be exercised, keeping in view the provisions of Order 18 Rule 17 of the Code of Civil Procedure and appropriate reasons have been assigned, while passing the order. Hence, the same may not be treated as perverse in any manner. The learned Judge has considered at length the submissions and found that no case is made out and this attempt on the part of petitioner is to fill up lacuna or omission which took place during the course of leading evidence. He has further submitted that this power cannot be exercised in a routine manner and allowing party to fill up the lacuna, or to seek any further direction or addition to the evidence which would defeat purpose of Page 8 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT provision, if this request is considered. As a result of this, learned trial Judge has rightly discarded the request of the petitioner. He has further submitted that this burden of producing the relevant document is on the person who deposes and if there is any negligence in proving the document, then, this provision under Order 18 is not meant for sheltering the negligence or inaccuracy and that has rightly not been done by the Court below. He has further contended that the said provision is, on the contrary, meant for the Court and not to the petitioner as a matter of right. This issue has been empathetically analyzed by the decisions of the Apex Court which are reported in 2016(11) SCC 296, 2016(14) SCC 142 and a decision dated 20.8.2018 delivered by Delhi High Court in MEP.AA.(FC) 138/2017 and by referring to these decisions, he has submitted that even omission is also not to be encouraged in a routine manner. Here is a case in which though there is specific assertion in examinationinchief to which the lawyer concerned was aware, the original Will was not shown and after a period of 1 month, the mistake made has Page 9 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT been realized and this application is given to fill up the lacuna. Hence, this attempt may not be encouraged as has not been allowed by several decisions of the Apex Court. Hence, the petition being meritless, does not deserve to be entertained.
8. He has further contended that the learned trial Judge is invested with the discretion to pass an order and the manner in which the order is passed, it appears that the same is well within the discretion vested in him. Hence, there seem to be no material irregularity, nor perversity which would permit the petitioner to invoke extra ordinary jurisdiction. Looking to the scope of Articles 226 and 227 of the Constitution of India also, such a request has rightly not been accepted by the Court below. Hence, petition be dismissed.
9. Having heard learned advocates for the respective parties and having gone through material produced on record, it appears that the suit is of the year 2009 which was filed for the purpose of seeking declaration and permanent injunction way Page 10 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT back in April, 2009 in which evidence has commenced and during the course of evidence in the year 2017, witnesses been examined by the respondents. It has been further found that in an examinationin chief which has been submitted at Exh.97 it has been clearly in terms, suggested on 6.7.2017 in paragraph 4, that if original Will is shown, the same would be possible for him to identify the signature. It has also been found that the reason which has been assigned for seeking such kind of production and in turn recalling of the witnesses is only with a view to see that no prejudice is caused. But, in fact, the chiefexamination was tendered on 6.7.2017. The cross examination has taken place on 22.8.2017, in which also, no attempt is made to prove the Will in question. It is also found that this application is submitted after almost a period of one month and the manner in which the application is submitted, it transpires that the realization or mistake might have taken place to prove the Will. Hence, apparently, it appears that at the relevant point of time, during the course of one of the witnesses, a lapse has occurred of not showing the Will to the Page 11 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT witness.
10. However, it appears that application for recalling of witness is given to take sufficient evidence and as such this application is aimed at an inclination to complete the left out circumstances which did not occur at the time, even though it was reflecting in affidavit and in examinationinchief. This request certainly can be said to be an attempt to fill up the lacuna or to fill up the gap on account of omission.
11. Now, in the context of aforesaid circumstances which are prevailing on record, the Court has specifically noticed that chief examination has been completed in the month of July, 2017, cross examination had also been completed in August, 2017 whereas the application is submitted in the month of September, 2017.
12. Additionally, it also appears that this lacuna cropped up in the case of one of the witnesses Bipinchandra Maneklal Trivedi and not the other signatories to the execution of Will.
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13. In the wake of aforesaid situation which is prevailing on record, if the Court analyzes the decisions which have been cited by the respective sides, the same would be of much assistance to arrive at a decision. In this context, the first decision which has been cited by learned advocate Mr.J.A. Adesara appearing for and on behalf of the petitioner is a decision, delivered by the Apex Court, reported in 2009(4) SCC 410. The Hon'ble Supreme Court, after analyzing the provisions of Order 18 Rule 17 of the Code of Civil Procedure has pointed out that there is ample power in which the Court can recall not only on its own, but also on an application made by the defendants and by examining the facts which were prevailing on hand. The Apex Court has propounded that if the reexamination of witness is bearing the ultimate decision, it is always open for the trial Court to permit such recalling of witness. Yet another decision which has been relied upon is reported in 2012 Law Suit (Guj) 1365 in which also, similar view has been reiterated that is prerogative of the Court to recall any witness who has been examined earlier and put him to question Page 13 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT as may be deemed fit. The only barrier is that it is not permissible for a party to fill up the lacuna.
14. Now, as against this, a recent trend which has been reflecting from the decisions reported, it transpires that such power of recalling witness shall not be exercised in a routine manner. First judgment which has been pointed out is a decision reported in 2016(11) SCC 296, in which, while dealing with provisions contained under Order 18 Rule 17 r/w Sec.151 of the Code, the Apex Court has clearly propounded that the provisions cannot be resorted to, for the purpose of filling up lacuna or omission. The Court has gone to the extent that no prejudice is caused to either party is also not a relevant consideration for invoking Rule 17 of the Code. The relevant extract contained in this decision reads as under: "11. The respondent filed the application under Rule 17 read with Section 151 of the CPC invoking the inherent powers of the court to make orders for the ends of justice or to prevent abuse of the process of the court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in Page 14 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. 'No prejudice is caused to either party' is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground.
14. The rigour under Rule 17, however, does not affect the inherent powers of the court to pass the required orders for ends of justice to reopen the evidence for the purpose of further examination or crossexamination or even for production of fresh evidence. This power can also be exercised at any stage of the suit, even after closure of evidence. Thus, the inherent power is the only recourse, as held by this Court in K.K. Velusamy (supra) at paragraph11, which reads as follows:
"11. There is no specific provision in the Code enabling the parties to reopen the evidence for the purpose of further examinationinchief or crossexamination. 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 Page 15 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT further examination or crossexamination, 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 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."
18. The settled legal position under Order 18 Rule 17 read with Section 151 of the 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."
15. A further decision which has been cited is reported in 2016(14) SCC 142, in which also, the Apex Court while dealing with this particular provision of Order 18 Rule 17 of the Code of Civil Procedure has clearly pointed out, while dismissing the Special Leave Petition with cost and has not permitted such reexamination. The relevant observations contained in such decision in paragraph Nos.7 and 8 reads as under: "7. In K.K. Velusamy(supra), while dealing with the power of the Court under Order XVIII Rule 17, this Court held that: Page 16 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT
9. 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 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]
10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examinationin chief or crossexamination 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.
And again:
19. 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 Page 17 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT trials. But where the application is found to bebona fideand 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 court is satisfied that nonproduction 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.
x x x x x
21. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. Courts 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 XVIII 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.
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8. In this context, we may fruitfully refer to Bagai Construction Through its proprietor Lalit Bagai v. Gupta Building Material Store,(2013) 14 SCC 1. 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 XVIII 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:
15....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 exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on 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 Page 19 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT course is not permissible even with the aid of Section 151 CPC."
16. Yet another decision, which is of assistance to the Court is a decision which is delivered by Delhi High Court recently on 20.8.2018 (Supra), in which after considering the earlier decisions of Hon'ble Apex Court and other decisions, the Delhi High Court has also taken a view that this provision is not meant to be exercised in a routine manner. After relying upon two decisions of the Apex Court; as propounded, that this provision is primarily made to enable the Court to clarify any issue or doubt by recalling the witness so that Court itself can put a question and elicit the answer. The relevant paragraph Nos.11 to 13 are reproduced hereinafter:
11. At the outset, we deem it proper to discuss the law on Order 18 Rule 17 of CPC. The Hon'ble Supreme Court in the case of Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, reported at (2009) 4 SCC 410 more particularly para 28 held as under:
"28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and reexamination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC." (Emphasis Supplied) Page 20 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT
12. Further, in the case of K.K. Velusamy v. N. Palanisamy reported at (2011) 11 SCC 275 discussed the power of the Court under Order 18 Rule 17 of CPC. It was held that this power is only for clarification i.e. to enable Court to clarify any issue or doubt, it may have in regard to evidence led by parties by recalling any witness so that the Court itself can put questions to such witness and elicit answers. The relevant paras 9, 10 and 19 read as under:
"9. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examinationinchief or crossexamination 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 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 the parties to assist it by putting some questions.
10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examinationinchief or crossexamination 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 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 the parties to assist it by putting some questions.
xxx xxx
19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of Page 21 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT 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 court is satisfied that nonproduction 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." (Emphasis Supplied)
13. In the case on hand, the counsel for the appellant has fairly submitted that when the said application came for hearing, it was dismissed as withdrawn by the counsel for the appellant for the reasons best known to him. Once the application was dismissed as withdrawn, the appellant cannot complain that the Family Court did not allow the witness to be reexamined. Moreover, applying the law laid down to the facts of the present case that Order 18 Rule 17 of CPC is to be sparingly exercised and it is not a provision intended to enable the parties to recall any witnesses for their further examinationinchief or crossexamination. However, the provision is primarily to enable 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. In this background, we are of the view that the power under Order 18 Rule 17 is not Page 22 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT intended to be used in routine manner.
17. From the aforesaid proposition, what has been emerged is that this power under Order 18 Rule 17 of the Code of Civil Procedure cannot be exercised for the purpose of either filling up omission or for the purpose of filling up lacuna or for the purpose of amplifying a deposition or to clarify. Here, in the case on hands, there is a specific assertion made by the witness that if his signature is shown in original Will, he could identify the same. Even though there is a reference in examinationinchief and in the cross examination which has been taken even at that juncture also, no such attempt is made which is now tried to be made and after almost a period of one month, possibly having realized the serious mistake, this kind of application is submitted which certainly tantamounts to be an attempt to fill up lacuna or to clear the omission which took place by the present petitioner.
18. Hence, in view of above set of circumstances and in view of the aforesaid proposition of law which has been laid Page 23 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT down by the Apex Court in recent times, this Court is not in a position to substantiate the finding which has been laid in due discharge of its exercise of jurisdiction.
19. Additionally, the Court has assistance to one of the decisions of the Hon'ble Apex Court on the issue of exercise of extra ordinary jurisdiction and for that purpose, the Court is inclined to avail such assistance. This petition is filed under Articles 226 and 227 of the Constitution, but exercise of supervisory jurisdiction is enabled by Article 227 of the Constitution and what are the parameters for exercise of such power are stipulated by the decision which has been reported in AIR 1984 SC 38. The relevant paragraph No.7 is reproduced hereinafter: "7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunals functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error or law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunals purports to be Page 24 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019 C/SCA/4714/2019 JUDGMENT based or to correct errors of law in the decision."
20. This principle has been more carefully reiterated and reenforced by the Apex Court in a further decision reported in 2013(9) SCC 374, and looking to the observations contained in paragraphs No.6 and 7 of the said decision, this Court is not inclined to exercise extra ordinary jurisdiction in such a peculiar set of circumstances. It appears that the petitioner is also not made remedy less, yet another witness is very much available. Hence, no error appears to have been committed of any nature. Even, there seem to be no material error in exercising discretion nor any perversity is reflecting which would permit this Court to exercise extra ordinary jurisdiction. Accordingly, petition being merit less, the same deserves to be dismissed and is hereby dismissed with no order as to costs.
Sd/-
(A.J. SHASTRI, J) *** VATSAL Page 25 of 25 Downloaded on : Sun Jun 30 21:13:55 IST 2019