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2009 DIGILAW 1250 (PNJ)

Ranjit Singh v. Naranjan Singh

2009-07-28

M.M.S.BEDI

body2009
Judgment M.M.S.Bedi, J. 1. Defendant-petitioner has filed this petition under Article 227 of the Constitution of India, for setting aside the order dated 08.05.2009, passed by Additional Civil Judge (Sr. Divn.), Sultanpur Lodhi, recalling the plaintiff for examination and cross-examination by exercising the powers under Order 18 Rule 17 CPC, observing that on earlier occasion in acase the District Judge, Kapurthala, had remanded the case back for recording the evidence afresh on the ground that the affidavit lacked proper oath and attestation and that the document had been exhibited in the affidavit itself. He observed that though the suit is at final stage but on account of some error existing on the record, it may meet the same fate on the ground that the evidence has not been properly recorded as per law. 2. Counsel for the petitioner has vehemently argued that recalling the plaintiff to produce fresh affidavit will tantamount to fill-in the lacunae and that it is beyond the ambit of jurisdiction of the Court to fill in the lacunae by permitting the plaintiff to file a fresh affidavit in which the documents have not been exhibited in the affidavit itself. 3. On the other hand, the plaintiff-respondent has appeared in person. He has stated that he is about 100 years of age and that the petitioner is trying to delay the proceedings. He is mainly aggrieved by the interim order passed by this Court staying the proceedings. He has stated that he has been running from Delhi to Kapurthala, since long but he has not been able to get justice. He has shown a large number of Railway tickets. The plaintiff respondent has filed this suit in February 2007, challenging the registered sale deed of 02.12.1981. The Railway tickets and age of the respondent is not of much relevance for the adjudication of this petition. The only concession which the respondent is entitled to from the Courts is an expeditious disposal of his case. He claims that he has been wrongly dragged to the High Court by the petitioner. His suit is pending for the last many years and that the petitioner is bent upon to dealy the proceedings for one reason or another. 4. I have heard counsel for the petitioners as well as counsel for the respondent appearing in person. He claims that he has been wrongly dragged to the High Court by the petitioner. His suit is pending for the last many years and that the petitioner is bent upon to dealy the proceedings for one reason or another. 4. I have heard counsel for the petitioners as well as counsel for the respondent appearing in person. The plaintiff in the present case was examined-in-chief by way of affidavit EX-PA and documents EX. PI to EX. P7, had been marked in the Affidavit itself. The documents which were mentioned in the affidavit were required to be marked and exhibited in the statement before the Court. The defendant-petitioner has contended that the affidavit of the plaintiff was tendered on 24.05.2007. His cross-examination stands conducted. Other witnesses were examined. Thereafter, the evidence of the plaintiff was closed on 07.01.2008. The plaintiff has already been examined in rebuttal. In view of above circumstances, the defendant sought the dismissal of the application filed by the plaintiff for his re-examination. Order 18 Rule 4 CPC, which was incorporated by amendment dated 01.07.2002, reads as follow -- 4. Recording of evidence. - (1) In every case, the examination-in- chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence - Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Co.urt. (2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it- Provided that the Court may, while appointing a commission under this sub- rule, consider taking into account such relevant factors as it thinks fit. 5. Prior to the incorporation of Rule 4, the evidence of the witnesses in attendance was required to be taken orally in the open Court in the presence and under the personal direction and superintendence of the Judge. 6. Order 18 Rule 17 CPC, permits a Court at any stage of a suit to recall any witness who has been examined and put him such questions as the Courts trunk fit. Order 18 Rule 17 CPC, reads as follow -- 17. 6. Order 18 Rule 17 CPC, permits a Court at any stage of a suit to recall any witness who has been examined and put him such questions as the Courts trunk fit. Order 18 Rule 17 CPC, reads as follow -- 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. 7. In the present case, the trial Court has prdered recalling the plaintiff to examine him as a witness merely to rectify a mistake in the affidavit regarding the documents which are always subject to the orders of the Court having been produced along with affidavit placed on the record under Order l8 Rule 4 CPC. 8. The trial Court exercising the said jurisdiction has observed that the District Judge, has remanded a case back to the trial Court on the ground that affidavit lacked proper oath and attestation and that the documents have been exhibited in the affidavit itself. The trial Court did not want to commit the same mistake which would entail a long delay in the final adjudication, as such, the Court has exercised the power recalling the plaintiff who had earlier tiled an affidavit on 24-05.2007. 9. It is pertinent to mention here that the affidavit which the plaintiff had earlier filed as his exainination-in-chief in the shape of affidavit is dated 24.05.2007, and a copy has been placed on record as Annexure P-1. After the impugned order, the affidavit which is sought to be produced has been placed on record as Annexure P-3 which is verbatim same as Annexure P-1, but the only difference in those affidavits is that the documents which were mentioned as exhibits P1, P2, & P3, etc., have been described as Annexures A, B and C etc. Such an exercise by the trial judge regarding recording of evidence, under Order 18 Rule 4 CPC, cannot be said to be illegal on the basis of the argument that said step will tantamount to permitting the production of additional evidence. 10. Such an exercise by the trial judge regarding recording of evidence, under Order 18 Rule 4 CPC, cannot be said to be illegal on the basis of the argument that said step will tantamount to permitting the production of additional evidence. 10. Counsel for the respondent has placed reliance on Surinder Kaur v. Karanbir Singh, 2004(3) RCR(Civil) 161 - 2004(3) PLR 41 to contend that the provision under Order 18 Rule 17 CPC, is.an enabling provision for convenience of the Court and not for the parties to re-examine any witness to fill-in lacunae in the case. There is no dispute regarding the legal proposition that order 18 Rule 17 CPC, is only meant to enable a Court to clear any doubts which may arise with regard to the earlier statement of a witness recalled for examination. It enables a Court to put such questions to a witness as it thinks fit. Under Order 18 Rule 4 CPC, examination-in-chief of a witness is produced in the shape of affidavit by supplying copies to the opposite party but so far as the documents which are filed and relied upon by the parties, the proof and admissibility of such documents filed along with affidavit is always subject to the orders of the Court. The provisions of the Evidence Act govern the admissibility and relevance of documents. The Civil Courts are vested with inherent powers under Section 151 CPC, which are to be exercised in a manner not in contravention to the specific provisions of procedure in the Code. A perusal of the impugned order indicates that the plaintiff- respondent did not want to produce any additional evidence but merely wanted to rectify the inadvertent mistake by mentioning the documents as Exhibits P1 to P7, and to describe the documents as Annexures P1, P2, P3 and onwards. The said step would not be any irregularity because the factum of proof and admissibility of documents which are attached with the plaint in the beginning under Order 13 Rule 1 CPC, or filed along with affidavit under Order 18 Rule 4 CPC, are subject to the orders of the Court. As the scope of examination-in-chief already furnished in the shape of affidavit is not to be changed, there would be hardly any additional cross-examination or further examination. Thus, there is no illegality in the order dated 08.05.2009 passed by Additional Civil Judge (Sr. As the scope of examination-in-chief already furnished in the shape of affidavit is not to be changed, there would be hardly any additional cross-examination or further examination. Thus, there is no illegality in the order dated 08.05.2009 passed by Additional Civil Judge (Sr. Divn.), Sultanpur Lodhi, recalling PW.l. The contention of counsel for the petitioner that the trial Court is not entitled to act on the basis of the application moved by the plaintiff- respondent under Order 18 Rule 17 CPC, as has been done in the present case, is mis-conceived as the application of the plaintiff-respondent was merely an information to the Court relating to the patent irregularity regarding exhibition of documents in the affidavit which the Court has got an inherent jurisdiction to rectify by recalling the witness in exercise of statutory powers under Order 18 Rule 17 CPC. 11. The revision petition is dismissed with clarification that examination-in-chief will not be permitted to be beyond the chief which has already been conducted and will be within the ambit of Order 18 Rule 17 CPC. However, it will be open to the trial Court to consider the documents which have been placed along with an affidavit under Order 18 Rule 4 CPC and under Order 13 Rule 1 CPC, pertaining to their proof and admissibility as per proviso of Order 18 Rule 4 CPC. 12. Parties are directed to appear before the trial Court on August 03, 2009. The order regarding costs imposed by the trial Court will remain operative. Copy of order be sent to the trial Court through Fax.