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2013 DIGILAW 934 (MAD)

A. K. Damodaran v. Geetha

2013-02-13

M.VENUGOPAL

body2013
ORDER 1.The Civil Revision Petition has been filed by the Revision Petitioner/Plaintiff as against the Order dated 12.11.2010 in I.A.No.464 of 2010 in O.S.No.59 of 2008 passed by the Learned Principal Subordinate Judge, Tindivanam. 2.The Learned Principal Subordinate Judge, Tindivanam, while passing orders in I.A.NO.464 of 2010 in O.S.No.59 of 2008, dated 12.11.2010, has in Para-6 categorically observed that 'already on behalf of the Petitioner/Plaintiff, PW1 has been examined and further, on behalf of the Respondent/Defendant, he has been cross examined and after completion of his evidence, to fill up what has been omitted by the Plaintiff in his evidence, in order to fill up the same, the present petition has been filed and after examination of a witness and also after completion of the cross examination of the witness and when the case has been adjourned for production of the other witnesses to be examined and at that point of time, when a petition is filed to re-examine the said witness with a request to mark documents, the same cannot be permitted as per the decision of the Honourable Supreme Court Vadiraj Naggappa Vernekar (d) Through Lrs. v. Sharad Chand Prabhakar Gogate 2009-5-L.W.52 and based on the observation of the aforesaid decision, the petition has been dismissed without costs.' 3. Being dissatisfied with the order of dismissal in I.A.NO.464 of 2010 in O.S.No.59 of 2008, dated 12.11.2010, passed by the Learned Principal Subordinate Judge, Tindivanam, the Revision Petitioner/ Petitioner/Plaintiff has projected the instant Revision Petition before this Court. 4.According to the Petitioner/Plaintiff, the Learned Principal Subordinate Judge, Tindivanam, has erroneously dismissed I.A.NO.464 of 2010 in O.S.No.59 of 2008, dated 12.11.2010, by not appreciating the necessary ingredients of Order 18 Rule 17 of the Code of Civil Procedure, which provides for the recall of the witnesses at any stage of the proceedings in a given case. 5.The Learned Counsel for the Petitioner/Plaintiff contends that the main suit has been posted for further evidence on the side of the Revision Petitioner/Plaintiff (PW1) and also that the evidence on the side of the Petitioner/Plaintiff has not been closed and when certain documents have not been made available at the time of filing of the suit by the Petitioner/Plaintiff, the Petitioner/Plaintiff has come into possession of these documents at a later point of time and admittedly, the same has been filed after the completion of the cross examination of PW1 (the Revision Petitioner/Plaintiff). 6. Added further, the documents in question are not meant to fill up the lacuna or plug the loop holes or weaknesses in the evidence of the Revision Petitioner/Plaintiff, examined as PW1. In any event, the trial Court has ample discretion to allow I.A.NO.464 of 2010 which in the present case has not been exercised by the trial Court in a sound and judicious manner. 7. Lastly, the Learned Counsel for the Petitioner/Plaintiff takes a plea that full opportunity will have to be provided by the trial Court to the Petitioner/Plaintiff to project his versions of the case and in the instant case on hand, the trial Court has not provided an adequate and fair opportunity to the Petitioner/Plaintiff to recall the witness PW1 (the Revision Petitioner/Plaintiff) and to permit him to mark the documents in issue, which in turn has resulted in miscarriage of Justice. 8. Per contra, the Learned Counsel for the Respondent/Wife submits that before the trial Court, the Revision Petitioner/Plaintiff (PW1) has been examined in Chief examination and later, his cross examination has been completed and only after the completion of the cross examination of the Revision Petitioner/Plaintiff/PW1, the Revision Petitioner has in his wisdom thought it fit to project the I.A.NO.464 of 2010 mainly with a view to fill up the lacuna or loop holes in the evidence already adduced by him. 9. Yet another contention of the Learned Counsel for the Respondent/Wife is that the evidence adduced by the Revision Petitioner/PW1 and the admissions if any, made by him, cannot be permitted to be obliterated or erased by a Court of Law, if the Court of Law allows the petition in I.A.No.464 of 2010 {filed by the Petitioner/Plaintiff} under Order 18 Rule 17 of the Code of Civil Procedure. 10. The Learned Counsel for the Respondent/Wife seeks in aid of the decision of the Honourable Supreme Court Vadiraj Naggappa Vernekar (d) Through Lrs. 10. The Learned Counsel for the Respondent/Wife seeks in aid of the decision of the Honourable Supreme Court Vadiraj Naggappa Vernekar (d) Through Lrs. v. Sharad Chand Prabhakar Gogate 2009-5-L.W.52, at Page 53, wherein it is observed and laid down as follows: "It is now well settled that 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 herein above, 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. There is nothing to indicate that such is the situation in the present case..... It is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out." 11. It is to be noted that the power to recall any witness/witnesses can be exercised by a Competent Court of Law either suo moto or at the instance of a contesting litigant or party. However, the trial Court, in this regard, is to exercise his care and circumspection in the manner known to law, when it allows the petition/application filed by the concerned party. It is true that a Court of Law cannot coerce or compel or force any litigant to examine a certain witness to substantiate his case. No wonder the power of a Court of Law to recall a witness is discretionary in nature. The said discretion is to be exercised by a Court of Law with utmost care and caution. 12. Furthermore, the power to recall the witness is not given to a litigant/party and the same is vested with the competent Court of Law. If a Court of Law allows a person/witness to recall then, an opportunity will be provided to the other side to cross examine the said witness on the answers to the questions. 12. Furthermore, the power to recall the witness is not given to a litigant/party and the same is vested with the competent Court of Law. If a Court of Law allows a person/witness to recall then, an opportunity will be provided to the other side to cross examine the said witness on the answers to the questions. Unless and until the Law itself provides some repercussions on account of any lapse committed an endeavour of the Court of Law is to ensure the best material to be brought on record by the parties concerned, which would, effectively, efficaciously, conclusively and finally determine the rights of the parties in a complete and comprehensive manner, as opined by this Court. Indeed, the power of the Court Order 18 Rule 17 and 17-A to do so and to order recalling the re-examination of the witness, who has been examined earlier point of time to put in questions either the Court may deem fit or to produce evidence not previously known and could not be produced despite due diligence, only embargo for a Court of Law is that the discretion to recall a witness under Order 18 Rule 17 cannot be put into operative play, after the main case is heard and reserved for Judgment. 13. In the present case on hand, the Revision Petitioner/ Petitioner/Plaintiff (husband) has filed a suit in O.S.No.59 of 2008 on the file of the Learned Principal Subordinate Judge, Tindivanam, seeking the relief of declaration of title to the suit properties that belongs to him and also, for a relief of permanent injunction restraining the Defendant (Respondent/Wife) from interfering with the Plaintiff's possession and enjoyment in any manner. 14. The Respondent/Wife has filed a detailed Written Statement among other things mentioning that the Petitioner/Plaintiff has no proof to show that he parted with the sale consideration or contributed any amount for construction and thereby, he is not conferring the title over the suit schedule property, etc. As on date, the main suit in O.S.No.59 of 2008 on the file of the trial Court is in part heard stage. If the trial Court, while dismissing I.A.No.464 of 2010, has assigned an irrational or flimsy reasons to reject the petition then, it can be set aside by this Court exercising its parental/supervisory jurisdiction in Revision. 15. Admittedly, the power under Or. If the trial Court, while dismissing I.A.No.464 of 2010, has assigned an irrational or flimsy reasons to reject the petition then, it can be set aside by this Court exercising its parental/supervisory jurisdiction in Revision. 15. Admittedly, the power under Or. 18 R.17 CPC is to be employed sparingly and that too in just and proper cases. Also, it is beyond the competence of the Court to virtually oblige a party to examine any particular witness, as per decision of the Honourable Supreme Court The Municipal Corporation of Greater Bombay v. Lala Pancham and others, AIR 1965 Supreme Court 1008. 16. At this stage, this Court significantly points out that the principles similar to Or.47 CPC can be pressed into service but, ultimately, it is the discretion of the concerned Court to allow or refuse the petition/application filed under Or.18 R.17 of CPC, in the considered opinion of this Court. Moreover, the petition for reception of additional documents/additional evidence can be filed at any stage viz., till the trial Court becomes functus officio in regard to the pending suit before it (before pronouncing the Judgment). The right to produce evidence at subsequent stage by way of additional evidence is not taken away inasmuch as the trial Court has inherent power to exercise jurisdiction to secure the ends of Justice. 17. In the instant case on hand, the Revision Petitioner/Plaintiff in I.A.No.464 of 2010 has inter alia stated that his mother is getting a pension of over Rs.4,000/- from the year 1990 and he is filing the bank savings two passbooks and also that to prove that he has properties of his own and also to establish that he has sold out the same to third parties and he is endeavoring to mark the same and these documents are necessary documents, which could not be filed by him at the time of the filing of the suit and only after his cross examination has been completed, he has been able to obtain the same. At this juncture, this Court deems it appropriate to point out that marking of a document is one aspect in law and proving the contents of the same in the manner known to law and in accordance with law, is a different one. At this juncture, this Court deems it appropriate to point out that marking of a document is one aspect in law and proving the contents of the same in the manner known to law and in accordance with law, is a different one. Even though the cross examination of the Revision Petitioner/Plaintiff(PW1) has been settled and inasmuch as the Petitioner/Plaintiff is desirous of establishing his case by producing a best evidence on his nascent stage where the examination of witnesses on the side of the Petitioner/Plaintiff has not been over and also very much for examination of other witnesses on the side of the Petitioner/Plaintiff, the main suit has been admittedly posted for further hearing. By allowing I.A.No.464 of 2010 filed by the Revision Petitioner/Plaintiff, this Court also opines that no prejudice or harm will be caused to the Respondent/Wife. If I.A.No.464 of 2010 is allowed then, as a logical corollary, the Respondent/Wife will get an adequate or enough opportunity to cross examine the witness PW1 (namely the Revision Petitioner/Plaintiff). The only rider would be at the time of re-examination of PW1, it is the fundamental duty of the trial Court to see/ensure that what has already been adduced by the Revision Petitioner/Plaintiff/PW1, cannot be permitted to be obliterated or erased in the guise of the re-examination of the Revision Petitioner/PW1 (Plaintiff). In the light of the aforesaid discussions and detailed discussions, this Court comes to a resultant conclusion that the trial Court has not assigned valid reasons to reject the I.A.No.464 of 2010. Consequently, this Court holds that the trial Court has committed an error of jurisdiction in rejecting the I.A.No.464 of 2010. Therefore, this Court, to prevent an aberration of Justice, interferes with the orders in I.A.No.464 of 2010 in O.S.No.59 of 2008, dated 12.11.2010 passed by the trial Court and sets aside the Civil Revision Petition in furtherance of substantial cause of Justice. 18. In the result, the Civil Revision Petition is allowed. The order passed by the trial Court in I.A.NO.464 of 2010 in O.S.No.59 of 2008 is set aside for the reasons assigned by this Court in this Revision. Further, the trial Court is directed to restore the I.A.No.464 of 2010 to its file and to proceed further in the manner known to law and in accordance with law. The order passed by the trial Court in I.A.NO.464 of 2010 in O.S.No.59 of 2008 is set aside for the reasons assigned by this Court in this Revision. Further, the trial Court is directed to restore the I.A.No.464 of 2010 to its file and to proceed further in the manner known to law and in accordance with law. It is made clear that the trial Court shall provide adequate/enough opportunity to either side to examine PW1 (after recalls) and to cross examine and when PW1 is put into the box and being examined by the Revision Petitioner/Plaintiff side as PW1, the trial Court is directed to ensure that the evidence already adduced by him are not permitted to be erased or obliterated etc. Since the main case in O.S.No.59 of 2008 is at a part heard stage, the trial Court in any event is directed to dispose of the main case within a period of four months from the date of receipt of a copy of this order and to report compliance to this Court without fail. Consequently, the connected M.P.No.1 of 2011 is closed.