Madras High Court
M/S. Pan Resorts Limited vs H.H. Karthika Pooyam Thirunal on 10 December, 2010
Author: T. Mathivanan
Bench: T. Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.12.2010 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN A.Nos.5471 & 5472 of 2010 in CS.No.632 of 1997 M/s. Pan Resorts Limited, Rep by its Director Sarath Kakamanu ... Applicant Vs. H.H. Karthika Pooyam Thirunal Gourj Parvathi Bayi And others ... Respondent Prayer: Applications filed under Order 14 Rule 8 and Order 17 Rule7 of Original Side Rules read with Order 18 Rule17 and Section 151 of Civil Procedure Code with a prayer to reopen the evidence of PW 1 and to recall and permit PW 1 to mark various sale deeds as specifically set out in para 27 and 29 of the proof affidavit of PW 1, the sale deeds pertaining to Plot No.7; the Board Resolution of the Plaintiff Company & Form No.32; the letter dated 28.07.2008 written by the sixth defendant to the Commissioner of Police with a copy marked to PW 1 and the e-mail dated 24.07.2008 sent by the fifth defendant to the applicant. For Appellant : Mr.Satish For Respondent : Mr.R. Rajarajan Mr.R. Meelakandan Mr.A.R. Karunakaran Common Order
These two applications have been filed by the applicant after invoking the proviso to Order 14 Rule 8 and Order 17 Rule7 of Original Side Rules read with Order 18 Rule17 and Section 151 of Civil Procedure Code with a prayer to reopen the evidence of PW 1 and to recall and permit PW 1 to mark various sale deeds as specifically set out in para 27 and 29 of the proof affidavit of PW 1, the sale deeds pertaining to Plot No.7; the Board Resolution of the Plaintiff Company & Form No.32; the letter dated 28.07.2008 written by the sixth defendant to the Commissioner of Police with a copy marked to PW 1 and the e-mail dated 24.07.2008 sent by the fifth defendant to the applicant.
2. The suit in SC.No.632 of 1997 has been instituted on 07.07.1997 for the relief of specific performance of agreement of sale dated 03.08.1994. After inviting the written statements of the defendants, necessary issues and additional issues were formulated on 08.11.2005 and 03.09.2007 respectively.
3. It is obvious that the plaint was signed and verified by one K.Subbiah, who was the Director of the plaintiff company at the time of filing of this suit. Subsequent to his death on 29.12.2005 the applicant who is none other than the son of the said K.Subbiah was permitted to continue the suit on behalf of the plaintiff by the order of this Court dated 09.03.2010, as he being one of the Directors of the plaintiff company.
4. That on 09.03.2010, the applicant (PW1) by way of marking the commencement of trial had filed his proof affidavit. In para 27 of his proof affidavit, he has given a vivid account as to how the entire property located at No.1 LB road has been divided and sold under various sale deeds to various companies and entities who were controlled by the applicant and his father excepting a few small pieces of land as specified in paragraphs 28 and 29 of the proof affidavit. Besides this, the applicant has also stated in paragraphs 28 to 30 as to how certain small portions of the property were illegally sold by the royal family members to the third parties and also about the pendency of three suits in C.S.No.158 to 160 of 2006 on the file of this Court. Under the above circumstance, the applicant has come forward with these two applications to reopen his evidence (evidence of PW 1) and also to recall and permit him to mark;
(a)the various sale deeds as specifically set out in paragraphs 27 and 29 of his proof affidavit.
(b)the sale deeds pertaining to Plot No.7.
(c)the Board Resolution of the plaintiff's company.
(d)letter dated 28.07.2008 written by the 6th defendant to the Commissioner of Police with a copy marked to the applicant.
(e)e-mail dated 24.07.2008 sent by the 5th defendant to the applicant (PW 1).
5. Before we go into the merits of the case it may be better to have the assistance of the proviso to Order 18 Rule 17 of Civil Procedure Code.
Order 18 Rule 17 CPC "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."
6. From the language coined in Rule 17 to Order 18 an inference can be drawn that;
"Power to recall any witness can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but such power is not to be invoked to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. If the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter."
7. This principle is laid down by the Hon'ble Supreme Court in Vadiraj Naggappa Vernekar (D) through Lrs. vs. Sharad Chand Prabhakar Gogate reported in (2009) 4 MLJ 288 (SC).
8. The learned counsel appearing for the applicant has based his arguments on the following grounds;
1.DW1 during the course of his cross-examination has admitted that all the sale deeds enlisted in paragraph No.27 of the proof affidavit of the applicant (PW1) relating to Plot No.3,4,5 and 1 were executed by his father for and on behalf of the defendants 1 to 9 in the suit. However, during the course of argument the learned counsel appearing for the defendants had adverted to that those sale deeds did not have any reference to show that the entire property was divided and then sold and that the entire property at No.1 LB Road was undivided.
2.Initially the applicant did not produce the sale deeds as detailed in paragraph No.27 of his proof affidavit as he was under the impression that the execution of those sale deeds was admitted by the defendants and not disputed. DW1 had also corroborated this fact in his cross-examination. Since the learned counsel appearing for the defendant during the course of his arguments had sought to portray a different picture, it has now become necessary for the applicant to produce the certified copies of the sale deeds specified in Paragraph 27 of the proof affidavit to avoid any technical defects.
3.It is the specific case of the plaintiff that the entire area of the property at No.1 LB Road measuring 4.06 acres, which was divided into 7 plots, of which the applicant (PW 1) and his father decided to acquire six plots measuring 3.89 acres through their closely held companies, and one trust and that Plot No.7 was sold to a third party. But during the course of argument the defendants had sought to make out a case that Plot No.7, had not been sold and is still with the defendants, in spite of DW1's specific statement that he had not checked as to what were the portions retained by the defendants as per Ex.P5 sketch. Under these circumstances it has become necessary for the applicant to produce necessary certified copies of the sale deed showing conveyance of Plot No.7 in favour of a third party.
4.During the course of argument, the learned counsel for the defendant's raised a technical plea saying that the suit itself was not maintainable since, Mr.K.Subbiah who was one of the Directors who signed and verified the pleadings, was not authorised by a Board of Resolution to file the suit. Yet another technical plea was raised by the learned counsel for the defendants that the applicant was also incompetent to continue the suit and also to give evidence on behalf of the plaintiff, since there was no Board Resolution authorising him to do so.
5.Both the applicant and his father had personally involved in the transaction for purchase of a major part of the property forming part of the property at No.1 LB Road through registered sale deeds as stated in para 27 of the proof affidavit of the applicant (PW1) and all these transactions were effected even before entering into the suit sale agreement. Both the applicant and his father were/are having personal knowledge of all the facts that have transpired for purchase of various property at No.1, LB Road and the applicant is also personally aware of the circumstances under which the plaintiff company then entered into the agreement. The fourth defendant has also admitted in his written statement that the applicant family members had acquired the entire share of the plaintiff company in 1995. When such being the case various technical pleas are now being raised to defeat the plaintiff's company's legitimate rights.
6.The board of the plaintiff's company comprising the applicant, his wife Sheela and one K.Srinivansan as its Directors, has now passed a resolution ratifying the act of K.Subbiah in filing the suit in the year 1997; ratifying the applicant pursuing the suit after the death of his father Subbiah on 29.12.2005; ratifying the applicant giving evidence as PW 1, in the present suit and also authorising him to continue with the suit and do all such things which are necessary to carry the suit to its logical end. Hence, it has become necessary for the applicant to produce the said board resolution.
7.During the course of argument advanced by the learned counsel for the defendant, it was maintained that the plaintiff is not in possession of any portions of the suit property. In order to disprove this factum, the plaintiff was in possession of one letter dated 28.07.2008, written by the sixth defendant to the Commissioner of Police with a copy marked to the plaintiff that Plot Nos.3, 4, 5 and 1 have already been sold to various companies of pioneer group and he is in occupation of the Palace in Plot No.2, eventhough he had sold his share to the plaintiff and that his possession is not being disturbed. This letter was necessitated due to a false police complaint given by the defendants 1 to 8 and 7 to 9, that the plaintiff was seeking to disturb their possession in respect of the suit property.
8.Even before issuance of this letter, the 5th defendant had sent an e-mail dated 14.07.2008 to the applicant (PW 1) confirming that 2 out of 9 shares of the suit property have been sold to the plaintiff and possession was handed over to the plaintiff to the extent of the said shares and that the defendants 5 and 6 had sold their shares by means of registered sale deeds and that the stay of the sixth defendant in the suit property is restricted only to the share which is remained unsold. Therefore, the letter dated 28.07.2008 written by the 6th defendant and the e-mail dated 14.07.2010 sent by the 5th defendant are very much essential to be produced as documentary evidences. This letter and e-mail were able to be traced out only now.
9. The learned counsel for the applicant has also added that the above mentioned documents do not introduce any new cause of action, but the documents are only in furtherance of the plaintiff's case as stated in the plaint as well as in the proof affidavit and no hardship will be caused to the defendants if the evidence of PW1 is reopened and all these documents are allowed to be marked at this stage. He has also maintained that the above mentioned document as mentioned in paragraph 27 of the proof affidavit of the applicant are already on record before this Court in C.S.No.158 to 160 of 2006 and are admitted as documentary evidence.
10. During the course of his argument, the learned counsel has also laid emphasis on Order 17 Rule 6 and 7 of Madras High Court Original Side Rules.
Rule 7 reads as follows;
"Notwithstanding anything contained in Rule 6, the Court may for sufficient reason direct any party to examine any witness in any stage of the suit."
11. In this connection he would submit that since the applicant has shown adequate reasons, he might be permitted to reopen his evidence so as to enable him to mark the documents specified in the opening paragraphs. He has also made stress upon Order 7 Rule 14 of Civil Procedure Code. It may be relevant to refer the proviso to Rule 14 to Order 7 of Civil Procedure Code.
"Production of document on which plaintiff sues or relies (1)Where a plaintiff sues upon a document or relies upon a document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall wherever possible, state in whose possession or power it is.
(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit."
12. And besides this the learned counsel while advancing his arguments has also made reference to the proviso to Order 18 Rule 17.
13. In order to substantiate his argument, he has also placed reliance upon the decision in Sultan Saleh Bin Omer v. Vijayachand Sirimal reported in AIR 1966 ANDHRA PRADESH 295 (Vol.53, C.95)(1). In this case the Learned Single Judge of Andra Pradesh High Court has made reference to Order 18 Rule 17 of CPC. With regard to Rule 17 he has observed that;
"A close reading of this Rule makes it obvious that the right under that Rule to put questions at any stage of a suit, or recall any witness for that purpose, is given to the Court. The Court can put questions to the witness re-called, and no cross-examination is ordinarily allowed upon the answers to be questions put by the Judge without leave. The right to act under this Rule is not restricted to the Court on its own motion, but may be exercised at the instance of a party. It cannot, therefore, be said that an opportunity to a party to re-call any witness for the purpose of examining, cross-examination or re-examining is governed by Order18, Rule 17 C.P.C."
It is also held further that;
"If circumstances warrant, an opportunity to a party to re-call a witness for examining, cross-examining or re-examining can be granted by a Court in the exercise of its inherent jurisdiction under Section 151 C.P.C."
14. The learned counsel has also placed reliance upon another decision in Suresh Kumar v. Baldev Raj reported in AIR 1984 Delhi 439. In this case the scope and application of Order 18 Rule 17 have been explained by a Learned Single Judge of Delhi High Court. It is held that;
"The term 'at any stage' as envisaged under Rule 17 means that, at any stage before judgment is pronounced. The stage of the case alone should not weigh with Court to such an extent as to overshadow other aspects of matter."
In paragraph No.3 of the judgment it is observed that;
"After the closing of evidence by both the parties, the matter came up for hearing of arguments before the trial Court. Wisdom then dawned upon the petitioner that he had not filed the original documents and the photostat copies filed by him were not admissible as secondary evidence. So, realising this lapse on his part he moved the aforesaid application for recalling AW 2, to prove the documents marked A, B and C and also to supply photostat copies of the documents which were to be exhibited as RW 1 and RW 2."
At paragraph No.6 of the judgment it is observed that;
"On a plain reading of this provision it is obvious that discretion vests in the Court to recall a witness who has been examined earlier at any stage of the suit which would evidently mean any stage before the judgment is pronounced. So the discretion vesting in the Court under this Rule can be exercised even after evidence of the parties has concluded, of course, it must be exercised judicially and on well accepted judicial principles and not arbitrarily or capriciously."
15. The learned counsel for the applicant has also made reference to Order 6 Rule 14 of CPC and submitted that where the party pleading is by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.
16. He has also submitted that the plaintiff's company, comprising the applicant, his wife Sheela and one K.Srinivasan as Director has now passed a resolution ratifying the act of K.Subbiah of filing the suit in the year 1997; ratifying the applicant pursuing the suit after the death of applicants father Subbiah on 29.12.2005. Hence, he would submit that the production of the resolution passed by the board through PW 1 will not in any way cause prejudice to the respondents/defendants.
17. With regard to the subscription and verification of pleadings in a suit by or against corporations, the learned counsel for the applicant has also made reference to Order 29 of the Code of Civil Procedure.
In Order 29 Rule 1, it is envisaged that;
"In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case."
18. In order to fortify his arguments he has also placed reliance upon the decision in United Bank of India v. Naresh Kumar and others reported in (1996) 6 SCC 660. In this case at paragraph No.9 at page No.663 it is held that;
"where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable."
At paragraph No.10, it is held that;
"It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure."
19. The learned counsel has also submitted that even though certain important documents were omitted to have been tagged with the plaint at the time of its presentation and were also omitted to be included in the list that has been annexed with the plaint, in the later stage, those documents could be tendered as evidence with the leave of the Court, exercising its jurisdiction under Order 7 Rule 14(3) of CPC. In order to substantiate his argument, the learned counsel has also placed reliance upon the decision in Kejriwal Enterprises v. General Manager, Ordinance Factory and others reported in AIR 2004 Calcutta 225. In this decision the Learned Single Judge of Calcutta High Court has observed that;
"Upon reasonable construction of the provisions of Order 7, Rule 14, Sub-Rule (3) as amended by Amendment Act 22 of 2002 and amending Act 46 of 1999 whereby the provisions of Rule 17-A of Order 18 has been omitted from the Code, this Court is of the view that, the documents, which have not been presented along with the plaint and also have not been entered in the list that has been added or annexed to the plaint as per the provisions of Order 7, Rule 14 Sub-Rule (1) of the Code could still be tendered in evidence with the leave of the Court which the Court may grant in exercise of jurisdiction under sub-rule (3) of Rule 14 of Order 7 of the Code as amended by Amendment Act 22 of 2002."
20. At the conclusion of his argument, the learned counsel for the applicant has also maintained that the documents which have been spoken to by PW 1 (applicant herein) in his proof affidavit at paragraph No.27 are already on record in the suits in C.S.No.158 to 160 of 2006 which are pending trial before this Court and since, those documents have been admitted to evidence, they might be called for, so as to enable the applicant to produce them before this Court. In order to add an additional strength to the case of the applicant. In this connection he has also made emphasis on the proviso to Order 13 Rule 10 of CPC.
Order 13 Rule 10 CPC Sup Rule (1) Court may send for papers from its own records or from other Courts "The Court may or its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any suit or proceeding, and inspect the same."
21. On the other hand the learned counsel appearing for the 7th and 8th respondents has vehemently objected the claim of the applicant and at the first instance, he would submit that since the applications have been filed by the applicant based on his proof affidavit, that too only on the basis of paragraph No.27 of his proof affidavit, instead of forming base over the pleading of the plaint they are not maintainable and are liable to be rejected at once.
22. The learned counsel has also submitted that no specific averments have been made in the plaint with regard to paragraph No.27 of the proof affidavit of the applicant (PW1). Under these circumstances, the applicant cannot be permitted to fill in the lacunae in evidence, after the matter was argued at very great length. He has also added that the applicant is not entitled to file the documents specified in the applications as claimed in paragraph No.27 of the proof affidavit, for the simple reason that those facts as narrated, did not form part of any fact in issue or a relevant fact in accordance with the rules of evidence enshrined in the Indian Evidence Act.
23. He has also maintained that just because DW 1 during the course of his cross-examination had deposed that 17/18 shares had already been sold even prior to the agreement in ExP3, it will not give any entitlement to the applicant to bring in newer evidence to establish what is not avered by the plaintiff himself in his plaint.
24. He has also adverted to that with regard to Plot No.1 and Plot No.7, the applicant did not have any case and without establishing the genuineness of the division of property, by other evidence which form part of the pleadings of the parties, the applicant cannot be allowed to produce any evidence which is not germane.
25. He has also submitted that though DW1 had spoken to about the sale of 17/18 shares, still 33 feet pathway as found in the agreement P3 is available and that the applicant cannot disconnect and pick out a particular sentence from the cross-examination of DW 1 and rely on sucha lacerated portions to file an application for receiving additional documents since admitted in plaint. Besides this the learned counsel has also adverted to that the factum of possession should be established by other evidence only and the applicant cannot rely upon documents which have been created subsequently for the purpose of this suit. Further he would submit that the alleged letter dated 28.07.2008, said to have been written by the sixth defendant to the commissioner of police and the other alleged e-mail dated 14.07.2008 said to have been sent by the fifth defendant to the applicant can never be marked through PW 1 whose evidence is sought to be reopened.
26. In this connection he has also submitted that the said letter dated 28.07.2008 cannot be received as evidence without the sixth defendant being called to the witness box. Similarly, in so far as the alleged e-mail dated 14.07.2008, is concerned either the Commissioner of Police or the authors of those documents are the competent person through whom those documents can be marked and that at any rate, the evidence of PW 1 cannot be reopened as the applicant is neither an author nor an addressee. He has also canvassed that the plaintiff having slept over the opportunity granted by this Court since 1997 i.e, for more than 13 years cannot suddenly wake up and seek to disrupt the Court proceedings through vexatious plea of filing additional documents through these applications after the arguments advanced were in possession. The applicant had also failed to mention the documents with reference to 17/18 shares that are sought to be produced through PW 1.
27. With regard to the competency of the late K.Subbiah to verify the plaint and the competency of the alleged Director Mr.Sarath Kakamanu, to file proof affidavit and examine himself as PW 1, the learned counsel for the defendants 7 and 8 would submit that question of competency is under challenge even in the written statement of the defendant even at the time of written statements by 9th defendant and that the matter has been left for trial when PW 1 was sustituted. He has also submitted that specific issues, in this connection have also been framed and specific questions have also been put to PW 1, during his cross-examination and having dropped the opportunity of producing the documents for over 10 years and more, the applicant has now come to the Court with a false affidavit claiming that such documents are ought to be filed, which cannot be permitted.
28. The learned counsel has also added that the plaint did not have any reference about the documents which are being spoken to by the applicant in paragraph No.27 of his proof affidavit.
29. On the line of the submissions made by the learned counsel for respondents 7 and 8, the learned counsel appearing for the 9th respondent has submitted that, no doubt the application to substitute the name of Mr.Sarath Kakamanu, in the place of late Mr.K.Subbiah was allowed by this Court, but in the same order, this Court had left open the issue of competency of Mr.Sarath Kakamanu to represent the applicant company. The applicant has been basing his case only on his evidence and not on the pleadings of the plaint and that it cannot be allowed by this Court so as to enable him to entertain a new case. He has added further that any amount of evidence or documents are liable to be rejected if they are not backed by proper pleadings. Further, he would submit that the alleged sale deeds, that are stated to have been executed in favour of the applicant were in his possession at the time of institution of the suit and subsequently, the applicant has chosen to rely on that only at the final stage. Hence he cannot be allowed to fill up the lacunae in his evidence that to at the fag end of the trial.
30. While advancing his arguments the learned counsel for the 9th respondent has posed a question as to why the alleged documents were not filed along with the suit and that the allegations as to whether the respondents had sold any portion other than the suit scheduled property is a wasteful exercise and that these applications have been filed just to delay the matters and protract the litigation which is already consumed 13 long years.
31. He would submit further that the competency to sue on behalf of a Public Limited Company incorporated under the Indian Companies Act is not a mere technicality as alleged by the applicant and that the so called ratification as suggested by the applicant, is unknown to law and the alleged admission of the 4th defendant or anyone else will not confer any right on a party which other wise does not have the same.
32. During the course of their arguments, the learned counsels have also placed reliance upon the decision in Vadiraj Naggappa Vernekar (D) through Lrs. vs. Sharad Chand Prabhakar Gogate reported in AIR 2009 SCC 1604. In this case a Division Bench of Hon'ble Supreme Court of India has held as follows;
"Order 18 Rule 17 CPC have been present to include the applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross-examination of the witnesses that certain apses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. 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 re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.
His Lordship has also further observed that;
It is now settled that the the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated herinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination in chief with permission to the defendants to cross examine the witness thereafter."
33. In order to add extra layer to their case the learned counsels have also made reference to the decision in Kulwant Singh v. Makhan Singh reported in AIR 1993 Punjab & Haryana 106. In this case it was contended on behalf of the plaintiff that;
"since the defendant has produced hand writing expert the plaintiff may also be permitted to rebut the evidence of the handwriting expert. Since the onus to prove due execution of the pronote and receipt in question was on the plaintiff, it was obligatory for the plaintiff to produce his entire evidence in affirmative to substantiate his aforesaid plea about the execution of the pronote and receipt in question. Admittedly the plaintiff closed his evidence in affirmative and thereafter the defendant in rebuttal produced the evidence of the handwriting expert to substantiate his pleas including the plea that the pronote and the receipt were not executed by the defendant and do not bear his signatures. The plaintiff has no right to rebut the evidence of the defendant referred to above including that of the handwriting expert."
It has also been held that;
"Apart from that under Order 18 Rule 17-A of the Code of Civil Procedure, the plaintiff can be permitted to produce additional evidence in case he satisfied the Court that after the exercise of due diligence the evidence sought to be produced was not within the knowledge or could not be produced by him at the time when the plaintiff was leading his evidence. It was not specifically pleaded by the plaintiff that the evidence which he now wasnts to produce was not within his knowledge or the same could not be produced by him at the time when he led his evidence in affirmative. Rather from the pleadings of the parties and the issues framed in this case the plaintiff very well know from the very beginning that onus to prove the due execution of the pronote and the receipt in affirmative was on him and not on the defendant. In case the plaintiff had exercised due diligence, he could have easily produced the handwriting expert when he produced his evidence in affirmative. In the instant case, by no stretch of imagination it can be reasonably inferred that the plaintiff was unaware of his duty to produce handwriting expert to prove the due execution of the pronote and the receipt in question when, he initially led evidence in rebuttal. Nor there is any allegation that he could not produce such evidence at the relevant time. The plaintiff thus cannot be permitted to produce handwriting expert at this late stage."
34. With regard to authorisation to verify and sign the plaint of the company they have submitted that unless the applicant is given the power to file a suit he has no authority to institute a suit on behalf of the company and that such a power can be conferred by the Board of Directors only by passing a resolution in this regard.
35. In order to substantiate their arguments they have also placed reliance upon the decision in M/s. Nibro Limited v. National Insurance Co. Ltd., reported in AIR 1991 Delhi 25. In this case it is held that;
"Order 29, Rule 1 of Civil Procedure Code does not authorise persons mentioned therein to institute suits on behalf of the corporation. It only authorises them to sign and verify the pleadings on behalf of the corporation. It is well settled that under Section 291 of the Companies Act except where express provisions is made that the posers of a company in respect of a particular matter are to be exercised by the company in general meeting in all other cases the Board of Directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the Memorandum and Articles."
36. Apart from this the learned counsels have also referred to the decision in M/s.Rajghria Paper Mills Ltd., vs. General Manager, Indian Security Press and another reported in AIR 2000 Delhi 239, in which it is held that;
"as contemplated under the proviso to Order 29 Rule 1 of CPC, the Director of a company is not competent to file a suit on behalf of the company, unless specific power is conferred upon him."
37. As specified in the opening paragraph of this order it is apparent that this suit has been instituted on 07.07.1997 and adequate issues have been formulated on 18.11.2005 and 03.09.2007 respectively. It is also obvious to note here that the applicant who has examined himself as PW 1 has filed his proof affidavit on 09.03.2010 and thereafter he was examined in chief and subsequently, he was also cross-examined. It is also pertinent to note here that during the course of his cross-examination Exs.P1 to 25 were marked on the side of the plaintiff. The 8th defendant was examined as DW 1 and during the course of his cross-examination Exs.D1 to D5 were marked. It is also clear that PW 1 and DW 1 were examined in chief and as well as in cross as envisaged under the proviso to Section 137 and 138 of Indian Evidence Act. Then on 19.04.2010 on the representation made by the learned counsel on both sides, the evidence on both sides was closed and the suit in C.S.No.632 of 1997 stood posted on 21.04.2010 for hearing both sides.
38. In this connection the learned counsel for the defendants 7 and 8 has submitted that arguments were advanced before three learned Judges of this Court and that finally i.e., on the third occasion after hearing the arguments advanced on behalf of the plaintiff, the learned counsels for the defendants had submitted his arguments on 23.09.2010. At the conclusion of his argument a representation was made on behalf of the plaintiff that the plaintiff wanted to send for the documents which are marked in the suit in C.S.No.158 to 160 of 2006. Hence, the suit was adjourned to 27.09.2010. On the same day itself the applicant came forward with these two applications viz., Application Nos.5417 and 5472 of 2010 for reopening the evidence of PW 1 and also to recall PW 1 and permit him to mark various sale deeds set out in paragraph 27 of the proof affidavit of PW 1.
39. On the other hand the respondents 7 and 8, have also come forward with an application in O.A.No.5550 of 2010 under Order 39 Rule 4 and under Section 151 of CPC to vacate the order of interim injunction dated 29.12.2004 granted in favour of the plaintiff in O.A.No.667 of 1997. Hence, it necessitated for this Court to take up and hear all the three applications simultaneously.
40. In the affidavit filed in support of the applications, the applicant has specifically stated that in paragraph No.27 of his proof affidavit, he has set out details of various sale deeds through which the transfers in respect of the entire property at No.1 LB Road were effected and that he has also stated in paragraph No.28 to 30 in his proof affidavit as to how certain small portions of the property was illegally sold by the royal family members (i.e., respondents 8 to 9) to the third parties and the pendency of the three suits in C.S.No.158 to 160 of 2006 on the file of this Court, and therefore he wants to send for the documents which are on record of the above said suits. Apart from this, the applicant wanted to produce the resolution of the board of the plaintiff's company ratifying the case of Mr.K.Subbiah, who had originally presented the suit in the year 1997, and also ratifying the applicant pursuing the suit after the death of his father (K.Subbiah) on 29.12.2005 and further ratifying the applicant giving evidence as PW 1.
41. As rightly argued by the learned counsel for the respondents 7 and 8, the contention of the applicant revolves around paragraph No.27 of his proof affidavit. It is also revealed from the averments of the affidavit filed in support of the application that the applicant does not form basis, of the pleadings of the plaint so as to project the grounds for the production of the documents to support his case. It is an admitted fact that there is no specific averment in the plaint with reference to paragraph No.27 to 30 of the proof affidavit of the applicant (PW 1).
42. It may be relevant to make a mention here that in paragraph No.4 of the affidavit of the applicant, he has stated that during the course of cross-examination the defendant's witness (DW 1) he has admitted that all the sale deeds listed in para No.27 of the proof affidavit relating to Plot No.3,4,5 and 1 were executed by his father (DW 1's father) for and on behalf of the defendants 1 to 9 in the suit. According to the applicant this is an admitted fact by DW 1 stating that his father had executed the sale deeds in respect of Plot No.3,4,5 and 1. In this connection it was submitted that since an argument was advanced on behalf of the defendants that those sale deeds do not have any reference that the entire property was divided and then sold and that the entire property at No.1 LB Road remains undivided, it made up the mind of the applicant to produce the various documents described in paragraph 27 of his proof affidavit
43. From the portion of the arguments advanced on behalf of the applicant, the following questions are arisen;
1.Whether an admitted fact is needed proof ?
2.Whether the sale deeds referred to in paragraph No.27 of the proof affidavit of applicant (PW 1), are having reference to show that the entire property at No.1, LB Road has been divided ?
3.Whether the applicant can be permitted to produce those documents which are referred to in paragraph No.27 of his proof affidavit in order to avoid the technical problem ?
44. Apart from this the applicant also wants to produce the resolution of the board ratifying the Act of his father K.Subbiah for filing the suit in the year 1997 and also ratifying the applicant pursuing the suit after his fathers death on 29.12.2010 and ratifying his giving as PW 1 in the present suit.
45. With reference to this, two more questions are also arisen as to;
1.Whether the defects can be cured after filing of the suit that too, after the closure of the evidence of both sides and also after hearing arguments of both sides ?
2.Whether the board resolution is to be allowed to be produced that to at the fag end of the suit ?
46. From the averments of the affidavit it can easily be presumed that all the documents which are sought to be produced through PW 1 by way of reopening the evidence of PW 1 after recalling him were/are within the knowledge of the applicant even prior to the filing of his proof affidavit. It is also apparent that neither his father Mr.K.Subbiah no the applicant has taken due diligence to produce those documents along with the plaint or after filing of the suit by seeking permission of this Court to produce those documents.
47. It is not the case of the applicant that those documents were not in his possession at the time of filing of the suit. If it is so, he should have stated wherever possible as to whose possession or power those documents were; as contemplated under Sub Rule (2) to Rule 14 of Order 7 of CPC.
48. Sub Rule(3) of Rule 14 to Order 7 makes it clear that a document which ought to be produced in the Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. Sub Rule(3) to Rule 14 Order 7 which stands introduced to the Court with effect from 01.07.2002 also makes it clear that the legislative intendment is that, ordinarily except in special and exceptional circumstances, the Court shall not be allowed to be introduced into the evidence, any document which the plaintiff while presenting the plaint ought to have delivered to the Court along with a copy thereof, and which document the plaintiff ought to have entered into the list to be added or annexed to the plaint.
49. It is pertinent to note here that the applicant himself has admitted at paragraph No.5 of his affidavit that he did not initially produce the sale deeds as mentioned in paragraph 27 of his proof affidavit as he was under the impression that the same were admitted by the defendant and were not disputed. Besides this all other documents i.e., the alleged letter dated 28.07.2008 said to have been written by the sixth defendant to the Commissioner of Police as well as the e-mail dated 24.07.2008 which is said to have been sent by the fifth defendant to the applicant were already in possession and that has also been admitted by the applicant in his affidavit. In so far as the board resolution is concerned it seems to have been passed recently, after the death of the applicant's father K.Subbiah on 29.12.2005.
50. From the averments of the affidavit and the submission made by the learned counsel for the applicant, it has been projected that though those documents were well within the possession and knowledge of the applicant, he has not exercised his due diligence to produce the same before this Court. The evidence given by DW 1 (8th defendant) alone appears to have given instigation or inducement to the applicant to come forward with these applications to recall him as well as to permit him to mark the above said documents.
51. In this connection this Court has thought it fit to place reliance upon the decision in Shri. Anisuddin and another v. Vimla Sethi and another reported in AIR 2003 NOC 393 (Delhi). This case is also similar to that of the present case on hand. In this case a suit for specific performance of agreement of sale was filed by the plaintiff and during the course of trial the plaintiff had sought permission of the Court to produce copy of letter on delivery of possession. The plaintiff had objected to earlier application of the defendant for permission to produce some documents by making statement that, it was not relevant for the purpose of deciding dispute. Though the said letter was in custody of the plaintiff, earlier he did not make disclosure of it and filed an application for the permission to produce three other letters. In the above circumstances it was decided that it cannot be said that the plaintiff had exercised due diligence, rather there was total negligence on his part.
52. On coming to the instant case on hand though the documents which are sough to be produced before this Court through PW 1 were in the custody of the plaintiff earlier he did not make disclosure of it and now only he has come forward with this applications seeking permission to produce those documents which itself would go to show that the plaintiff has not exercised his due diligence to produce the documents earlier, and for his negligence the defendants cannot be made as scape goat.
53. From the perusal of Order 18 Rule 17 CPC it is clear that while exercising the power under Order 18 Rule 17, the Court is competent to recall any witness, who had already been examined and he may be put questions as the Court thinks fit. The examination of the witnesses includes cross-examination as well. When a witness has been examined, the Court at any stage of the suit may recall the said witness for the purpose of examination which includes cross-examination. However, in so far as the production of document is concerned, since the documents have not been produced on the record, could not be allowed to be produced in the later stage especially when the provisions of Order 18 Rule 17(A) CPC were omitted by virtue of the Code of Civil Procedure (Amendment Act 2002), which has come into force with effect from 01.07.2002. As rightly observed by Lal Chandran Keshav vs. Rajesh Thakoor reported in AIR 2006 HP 61, "the production of documents is not covered by the provision under Order 18 Rule 17 of CPC."
54. It is obvious to note here that after the completion of evidence of both sides, the learned counsels appearing for the plaintiff as well as the defendants have advanced their arguments elaborately as rightly submitted by the learned counsel for the respondents 7 and 8. The respective learned counsels have argued the case before three Hon'ble Judges of this Court and only after the completion of the arguments for the third time by the learned counsels for the defendant, the applicant who has been examined as PW 1 and has come forward with these two applications to reopen the evidence of PW 1 to recall and also to permit PW 1 to mark the documents sought to be produced.
55. Having regard to the pendency of the suit for the past 13 years and even after advancing the arguments on behalf of both sides before three Hon'ble Judges of this Court, still the suit is being protracted on the pretext of reopening the evidence and recalling, PW 1 for the purpose of marking more documents.
56. In this connection this Court has also though fit to refer the decision in Maharashtra Industrial Development Corporation Nagpur and Another v. M/s. Gajanan Printing Press Office, Nagpur & Ors. reported in AIR 2009 (NOC) 907 (BOM). In this case a plea was raised on behalf of the petitioner that the term 'at any stage of suit' includes stage of judgment. Under this circumstance, it was decided that when hearing in suit is completed, parties have no further right to or privilege in matter. It is only for convenience of Court that judgment can be delivered after some interval after hearing is completed. It is in this context the term 'at any stage' of suit will have to be looked into. Hence, it was held that the plea of the petitioner that the term 'at any stage of suit' includes stage of judgment is not proper.
57. With regard to application of the proviso to Section 151 CPC it is to be borne in mind the inherent power of the Court cannot override the express provisions of the law. If there are specific provisions topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. This principal has been laid down in Arjun Singh v. Mohindra Kumar and others reported in AIR 1964 SC 993.
58. Before part with these applications, this Court wants to place on record that; the question formulated in paragraph Nos.43 and 45 may be answered by the trial Court at the time of penning down the Judgment, as it may not be proper to discuss in these interlocutory applications. If it is so, it may prejudice the parties concerned and hence there needs a restriction for this Court.
59. Keeping in view of the observations made above, this Court does not see any valid ground to reopen the evidence of PW 1 and also to recall him for marking the above mentioned documents.
Hence these applications are dismissed. No order as to costs.
prm