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2004 DIGILAW 471 (PNJ)

Surinder Kaur v. Karanbir Singh

2004-04-22

VINEY MITTAL

body2004
Judgment 1. Defendant Smt. Surinder Kaur has filed the present petition before this Court. She is aggrieved against the order dated May 7, 2002 passed by the learned trial Court. Vide the aforesaid order, the learned trial Court has rejected the application filed by the defendant-petitioner for recall of PW-2 Karanbir Singh and PW-3 Sant Pal Singh for further cross-examination. 2. The plaintiff-respondent Karanbir Singh has filed a suit for possession of the property in dispute. The aforesaid suit is pending before the learned trial Court since the year 1994. 3. The present application was filed by the defendant with the averments that since the land allegedly owned by the plaintiff had been acquired and the plaintiff had sold more than his share after the acquisition and the aforesaid fact was not put to the plaintiff during his cross-examination and similarly PW-3 Sant Pal Singh also could not be cross-examined with regard to the aforesaid fact, a request was made to allow further cross-examination of the aforesaid two witnesses. 4. The application was contested by the plaintiff. It was pleaded that the defendant was trying to prolong the case. In the earlier litigation, the entire controversy between the parties had been decided and, therefore, defendant No. 1 was not entitled to raise any point beyond the scope of the earlier order dated February 18, 1997 passed by the High Court. It was also stated by the plaintiff that since the aforesaid two witnesses PW-2 and PW-3 had been duly cross-examined, therefore, no further right of cross-examination could be afforded to the defendant. 5. The trial Court after considering the entire matter has dismissed the aforesaid application filed by defendant No. 1. 6. Defendant No. 1 has felt aggrieved and has approached this Court through the present petition. 7. I have heard Shri D. S. Nehra, the learned senior counsel appearing for the petitioner and Shri Arun Jain the learned counsel appearing for the plaintiff-respondent and with their assistance have also gone through the record of the case. 8. Shri D. S. Nehra, the learned senior counsel for the defendant-petitioner has primarily argued that the defendant-petitioner was merely seeking the further cross-examination of the two witnesses and since the facts pleaded in the written statement were only within the knowledge of the aforesaid two witnesses, therefore, they should have been allowed to be resummoned for further cross-examination. 8. Shri D. S. Nehra, the learned senior counsel for the defendant-petitioner has primarily argued that the defendant-petitioner was merely seeking the further cross-examination of the two witnesses and since the facts pleaded in the written statement were only within the knowledge of the aforesaid two witnesses, therefore, they should have been allowed to be resummoned for further cross-examination. It is argued by Shri Nehra that the plaintiff was not likely to suffer in any manner if the aforesaid witnesses were permitted to be further cross-examined and in any case the other party could be compensated with reasonable costs. The learned counsel further maintains that even if there was omission or lapse on the part of defendant No. 1 to completely cross-examine the said witnesses, still the interest of justice required that another opportunity be given to defendant No. 1 to cross-examine the aforesaid witnesses. In support of his contention Shri D. S. Nehra, the learned senior counsel has relied upon Shera V/s. Asha Ram, 1987 (1) Pun LR 463, Prakash Chand V/s. State Bank of Patiala, 1994 (1) Recent Revenue Reports 592 and Ran Singh V/s. Pirthi, 1996 (3) Pun LR 511. 9. On the other hand, Shri Arun Jain the learned counsel appearing for the plaintiff-respondent has vehemently opposed the aforesaid arguments of the learned counsel for the petitioner. Shri Jain has argued that the suit was pending since 1994 and was being delayed by the defendant on one pretext or the other. Shri Jain has further argued that the two witnesses PW-2 and PW-3 were cross-examined at length by the defendants and thereafter defendant No. 1 had no right to seek further opportunity to cross-examine them all over again. Shri Jain has also argued that in fact in view of the provisions of Order 18, Rule 17 of the Code of Civil Procedure, the defendant-petitioner had no right to ask for the recall of the said witnesses. 10. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties. 11. For convenience, the provisions of Order 18, Rule 17 of the Code may be noticed at this stage : "17. 10. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties. 11. For convenience, the provisions of Order 18, Rule 17 of the Code may be noticed at this stage : "17. Court may recall and examine witness :- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit. 12 From the perusal of the aforesaid provision, it is apparent that it is only the requirement of the Court that it may, at any stage of the suit, recall any witness who had been examined earlier and put to him such questions as it may deem fit. The said provision does not permit a party to re-examine any witness to fill the lacuna in the case. Such a provision is merely an enabling provision for the convenience of the Court. 13. The Hon ble Supreme Court of India in Smt. M. M. Amonkar V/s. Dr. A. S. Johari, AIR 1984 SC 931 has held that the power under Order 18, Rule 17 of the Code is to be exercised in exceptional circumstances. In Balkrishna Shivappa Shetty V/s. Mahesh Nenshi Bhakta, 2003 (3) Civil Court Cas 156 : (AIR 2003 Bom 293), interpreting the provisions of Order 18, Rule 17 of the Code, it was held as follows : "11. As already observed above, since the provisions of law contained in Order 18, Rule 17 of the Code though nowhere empowers the Court to allow a party to cross-examine a witness by recalling such witness and the impugned order having been passed in exercise of the provisions contained in Order 18, Rule 17, the same is unsustainable and is liable to be set aside. The contention that such powers can be exercised under Sec. 151 of the Code may be true in a given case provided the materials on record justify such order. As already observed above, in this case, mere failure on the part of the respondent Nos. The contention that such powers can be exercised under Sec. 151 of the Code may be true in a given case provided the materials on record justify such order. As already observed above, in this case, mere failure on the part of the respondent Nos. 1 to 3 to take appropriate steps at appropriate time in relation to Exhibit-5, that will not enure to their benefit to seek the assistance of the Court for exercise of its inherent powers under Sec. 151 to enable the party to fill the lacuna in evidence. Besides, it should not be forgotten that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressively provided in the Code, as has been ruled by the Apex Court in Padam Sen V/s. State of U.P. reported in AIR 1961 SC 218. The impugned order, therefore, cannot be justified under Sec. 151 as there is no material on record to warrant exercise of powers under Sec. 151 to allow the respondent Nos. 1 to 3 to recall the defendant No. 1 for the purpose of further cross-examination." 14. This Court also on an earlier occasion in Civil Revision No. 636 of 1995 decided on July 2, 2003, dealt with the provisions of Order 18 ,Rule 17 of the Code and held as follows : "Under the provisions of Order 18, Rule 17 of the Code, it is only the requirement of the Court that it 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 question to him as the Court thinks fit. The said language does not permit a party to re-examine any witness to fill up the lacuna in his case. The said provision is only with a view to enable the Court to clear any doubts which may arise with regard to the earlier statement of the said witness. 15. I have also gone through the various authorities relied upon by the learned counsel for the petitioner. All the aforesaid authorities deal with the cases where the question was whether additional evidence should be allowed or not and were dealing with the scope of Order 18, Rule 17-A of the Code. 15. I have also gone through the various authorities relied upon by the learned counsel for the petitioner. All the aforesaid authorities deal with the cases where the question was whether additional evidence should be allowed or not and were dealing with the scope of Order 18, Rule 17-A of the Code. Thus, the aforesaid authorities do not have any application to the facts and circumstances of the present case. 16. In view of the aforesaid discussion, I have no hesitation in holding that the present revision petition is without any merit and the same is, accordingly, dismissed. Petition dismissed