Karnataka High Court
Smt P Mangala vs Shri C G Umesh on 11 August, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 11th DAY OF AUGUST 2017
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION NOS.29305-29308/2017(GM-FC)
BETWEEN:
Smt P. Mangala,
W/o Shri C. G. Umesh,
D/o late Shri. Padmanabaiah,
Aged about 35 years,
Residing at No.119/120,
Sathyanarayana layout,
3rd stage, 4th block,
Basaveshwaranagar,
Bengaluru - 560 079. ... Petitioner
(By Sri. Geetha Devi M. P., Advocate)
AND
Shri. C. G. Umesh,
Son of late Shri. Gangadharaiah,
Aged about 44 years,
Residing at No. 43, 2nd Phase, 2nd stage,
West of Chord Road,
Mahalakshmipuram Post,
Bengaluru - 560 086. ... Respondent
(By Sri H S Prashanth, Advocate)
Date of Order 11-08-2017 W.P.Nos.29305-29308/2017
Smt P. Mangala. Vs. Shri C. G. Umesh.
2/13
These Writ Petitions are filed under Articles 226 &
227 of the Constitution of India, praying to call for
records from in M.C.No.2728/2011 c/w
M.C.No.3481/2011 on the file of the Prl. Judge, Family
Court at Bengaluru etc.
These Writ Petitions coming on for Orders this
day, the Court made the following:-
ORDER
Smt. Geethadevi M. P., Adv. for Petitioner. Mr. H. S. Prashanth, Adv. for Respondent.
The present petitions have been filed by the wife in the matrimonial dispute aggrieved by the order dated 28.06.2017 whereby the learned Family Court below refused to recall the order by which the prayer of the petitioner/wife to adduce certain additional evidence and examine one more witness was refused by the Court below. The relevant portion of the said order is quoted below for ready reference:-
" 10. On perusal of records, it goes to show that this case was pending for consideration for almost more than 6 years and the matter pertaining to the year 2011 Date of Order 11-08-2017 W.P.Nos.29305-29308/2017 Smt P. Mangala. Vs. Shri C. G. Umesh.3/13
and the wife has filed the petition for divorce against the husband and the husband has filed the petition for restitution of conjugal rights. On one or the other reasons, the matter was dragged by both parties. On perusal of records, it is seen that the counsel for the petitioner addressed arguments and filed synopsis on 23-6-2015 i.e. two years back and thereafter the case was posted for respondent's arguments. At that time, the respondent reopened the case and he recalled himself for further examination and then the matter was referred to mediation center for almost 6 times and also referred to Lok Adalath, but not settled and finally this Court has taken up the matter on day to day basis and finally cross examination of RW1 was completed by the counsel for petitioner. After cross examination at length sometime on whole day and after closing the case, on 20-6-2017 the case was posted for arguments. At that stage, the petitioner has come up with these applications for reopening the case and Date of Order 11-08-2017 W.P.Nos.29305-29308/2017 Smt P. Mangala. Vs. Shri C. G. Umesh.4/13
recalling PW1 to mark the documents by producing the same.
11. There is direction from the Hon'ble Supreme Court and High Court to dispose the oldest matter pending for more than 5 years by making zero pendency. Because of that reason, this Court has taken up the matter on day to day basis and even imposed cost of Rs.20,000/- on the respondent for not appearing before the mediation center and dragging the matter by him. Thereafter the counsel for the petitioner also remained absent and not chosen to further cross examine the witness and witness also not present on the date of hearing, this Court also imposed cost of Rs.500/- to both parties to pay to Legal Service Authority. By imposing costs, this Court has taken up the matter on day to day basis and concluded the evidence. At this stage, the petitioner wants to reopen and recall the witness and to produce the documents. However the documents produced by the petitioner are complaint, FIR, order sheet of Magistrate Date of Order 11-08-2017 W.P.Nos.29305-29308/2017 Smt P. Mangala. Vs. Shri C. G. Umesh.5/13
Court, where the criminal case is pending against the respondent and police acknowledgment. Since the parties have given lengthy evidence and done lengthy cross examination, the petitioner not explained as to why these police documents were not able to produced and marked in earlier stage, though FIR has been marked by the petitioner, but not marked the complaint. Once FIR has been marked by this Court, it is not necessary for the petitioner to mark the complaint. Normally the complaint is part and parcel of FIR. Therefore, complaint can be marked with consent of other side, which includes the FIR. The police acknowledgment is pertaining to the year 2013 subsequent to the filing of this case. It is only the acknowledgment issued by the police when the complaint lodged by the petitioner i.e. subsequent event which is not so much necessary for this Court to decide the matter in dispute. Therefore, it is not required for the petitioner to recall herself for the purpose of marking of these documents. Order sheet of Magistrate Court is not relevant to this case Date of Order 11-08-2017 W.P.Nos.29305-29308/2017 Smt P. Mangala. Vs. Shri C. G. Umesh.6/13
for deciding the matter in dispute, since it is pertaining to criminal case under sec.498-A of IPC filed by the petitioner against the respondent. Therefore, it is snot necessary for this Court to reopen the case and to recall PW1 for the purpose of marking of document by producing the same at the fag end of the case.
12. With regard to IA No.11 under Order 16 Rule 1 of CPC for production of witness list and examination of another witness, as I already held above, the petitioner already examined herself and completed her evidence in January 2014 itself and cross examination was dragged for one or the other reason and finally on 23-6-2015, the counsel for petitioner argued his case i.e. two years prior to this date. If at all the petitioner wants to examine further any witnesses, she could have examined the witness well within the time and the witness is none other than own brother of the petitioner. There is no reason for the petitioner to wait for more than 3 - 4 Date of Order 11-08-2017 W.P.Nos.29305-29308/2017 Smt P. Mangala. Vs. Shri C. G. Umesh.7/13
years for production of list of witnesses and to examine him as witness after posting the case for arguments.
13. The counsel for petitioner argued that since the respondent has disclosed some of the facts in the cross examination, therefore, they wanted to examine this witness. But the petitioner has not assigned the satisfied reason in her affidavit for delay in filing the list of witnesses and examination of additional witness. The counsel for the respondent argued that the petitioner wanted to fill up lacuna in her cross examination by examining another witness which cannot be permissible in law. Of course, the petitioner can examine any number of witnesses to prove the case, but when the petitioner's affidavit's evidence was filed long back on 21-1-2014 and her cross examination was completed in 2016 itself, the petitioner could have filed application to lead further evidence by filing list of witness at that time itself, but without leading any evidence she kept quiet for more than 2 years and after completion of Date of Order 11-08-2017 W.P.Nos.29305-29308/2017 Smt P. Mangala. Vs. Shri C. G. Umesh.8/13
cross examination of respondent and when the matter set down for arguments, coming with application for production of document and examination of additional witness is not permissible and the reason assigned by the petitioner is also not acceptable at this stage.
14. The Hon'ble Supreme Court in the case of Vadiraj Naggappa Vernekar Vs. Sharadchandra Prabhakar Gogate in the ruling reported in (2009) 4 SCC 410, it is held as under:
"A. Civil Procedure Code, 1908: Or. 18 R.17 - Recall of witness after his examination is completed - Scheme and object - Power to recall witness - Discretion of Court - Matters to be considered - Recalling witness to fill up lacunae in evidence discovered on cross examination - Permissibility - Held, Or.18 R.17 is not intended to be used to fill up omissions in the evidence of a witness who has already been examined - Main purpose of Or.18 R.17 is to enable court to clarify any doubts that may have arisen during the course of his examination - Court may recall Date of Order 11-08-2017 W.P.Nos.29305-29308/2017 Smt P. Mangala. Vs. Shri C. G. Umesh.9/13
a witness either on its own motion or an application by any party to the suit - Prejudice is not a ground for exercise of power by Court - If evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, trial court may permit recall of such witness for re-examination in chief with permission to defendants to cross examine the witness - Appellants seeking to introduce evidence by recalling of witness, which was available at the time his affidavit was prepared - Neither new evidence sought to be introduced nor new facts discovered subsequently - only after cross examination of the witness that certain lapses in his evidence were noticed - Held, in such a case no case made out for recall of the witness."
In another case reported in (2011) 11 SCC 275 in the case of K.K. Velusamy Vs. N. Palanisamy, it is held as under:
"B. Civil Procedure Code, 1908 - Or.18 R.17 - Nature and scope of power under - Power to recall witness who has been examined under Or.18 R.17, held, cannot be Date of Order 11-08-2017 W.P.Nos.29305-29308/2017 Smt P. Mangala. Vs. Shri C. G. Umesh.10/13
exercised for further examination-in-chief or cross examination of witness or for adducing additional material or evidence, which power was available under Or.18 R.17A and is now available under Sec.151 of CPC - Power under Or.18 R.17 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 court itself can put questions to such witness and elicit answers - once a witness is recalled for purposes of such clarification, court may, of course, permit parties to assist it by putting some questions - However, this power under Or.18 R.17 is not intended to be used to fill up omissions in evidence of a witness who has already been examined.
C..............
D. Civil Procedure Code, 1908 - S.151 - Inherent power of Court - Nature and Scope - When can be exercised - principles summarized - Should be exercised with circumspection and not in a routine manner.
Date of Order 11-08-2017 W.P.Nos.29305-29308/2017 Smt P. Mangala. Vs. Shri C. G. Umesh.11/13
15. In view of judgments passed by the Hon'ble Supreme Court in the above said cases and coming to the present case, I hold that the petitioner has not made out sufficient reasons for reopening the case, recalling herself for marking documents by producing the same and also to lead further evidence at this stage by examining additional witness when the matter was pending for almost more than 6 years. Hence, I hold that the petitioner has filed to make out the case to allow IA Nos.8 to 11. Hence, I answer point No.1 in negative.
12. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER IA No.8 filed under sec.151 of CPC for reopening the case, IA No.9 filed under Order 18 Rule 17 R/W Sec.151 of CPC for recalling PW1 and to lead further evidence, IA No.10 filed under Order 7 Rule 14(3) R/W Sec.151 of CPC for production of documents and IA Date of Order 11-08-2017 W.P.Nos.29305-29308/2017 Smt P. Mangala. Vs. Shri C. G. Umesh.12/13
No.11 filed under Order 16 Rule 1 R/W Sec.151 of CPC by the petitioner are hereby dismissed.
However the petitioner is at liberty to mark the complaint with the consent of the respondent since FIR has already been marked by the petitioner.
By looking into the facts and circumstances of the case, no order as to costs."
2. Having heard the parties, this Court is satisfied that in the interest of justice and fitness of the things, the learned Court could allow the parties to complete the evidence by allowing one last opportunity and the witness to be examined, so that, matrimonial dispute is properly decided. The reason given by the Court below is that the matter is dragged on by the parties and even today, the learned counsel for respondent has prayed for sometime to file statement of objections. By way of last opportunity, the wife is permitted to bring the Date of Order 11-08-2017 W.P.Nos.29305-29308/2017 Smt P. Mangala. Vs. Shri C. G. Umesh. 13/13 additional documents in question on record and examine one more witness on the date fixed by the Court below and then the Court will decide the matter on merits itself. Petitions are allowed accordingly. No costs. Copy by sent to the Court below forthwith.
Sd/-
JUDGE MH/-