Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1008 (ORI)

Jagat Prasad Singh v. Hemanta Prasad Singh

2017-09-08

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This Civil Misc. Petition involves a challenge to allowing an application to re-open the evidence of the plaintiff for examination of further witnesses at the instance of the plaintiff-O.P.1 moved after closure of the examination of all witnesses from both sides. 2. Assailing the impugned order, Sri Mishra, learned counsel for the petitioner-defendants submitted that in the event the impugned order is sustained, it will be amounting to de novo trial of the suit. Referring to the unreported decision of the Hon’ble apex Court in the case of K.K. Velusamy vrs. N. Palanisamy (Civil Appeal Nos. 2795-2796 of 2011 decided on 30.3.2011) reported vide 2011 (II) OLR (SC)-2013, particularly the observation made in paragraph-16 thereof submits that the petitioner has the full support of the observation therein, and therefore, prays for interference of the impugned order and rejection of the same. 3. In his objection, Sri Pradhan, learned counsel for O.P.1, referring to the application under Order 18 Rule 17 of C.P.C. read with Section 151 of C.P.C. and the submission made during course of hearing of the said application, contends that since the dispute involved a serious question of adoption, unless the plaintiff is permitted to examine additional witnesses, there will be no effective adjudication. Further referring to the paragraph-12 of decision of the Hon’ble apex Court relied upon by the trial court in the impugned order in the case of K.K. Velusamy vrs. N. Palanisamy reported in 2011 (II) OLR (SC)-2013, submitted that this decision rather supporting the case of the petitioners and the trial court’s order based on such decision, there remains, there is no infirmity in the impugned order. Sri Pradhan accordingly submitted that there is no scope for interfering with the impugned order. 4. Considering the rival contentions of the parties and taking into consideration the pleading available involving the parties, particularly involving C.S. No. 21 of 2010, there is no dispute that the suit involves a serious question of adoption and the fate of the plaintiff depends on establishing the question of adoption. Under the circumstance, this Court finds, the plaintiff should be provided fullest opportunity to satisfy his case. Further for the pendency of the suit at the stage of argument, there is also no bar in giving such application. Under the circumstance, this Court finds, the plaintiff should be provided fullest opportunity to satisfy his case. Further for the pendency of the suit at the stage of argument, there is also no bar in giving such application. Further since the defendants have the scope of cross-examination of such witnesses, there is no prejudice to the defendants otherwise. 5. Now coming to perused the decision cited at Bar, looking to the decision in K.K. Velusamy (supra), this Court finds the Hon’ble apex Court in paragraphs-7, 8, 9, 10 & 16 has made the following observations :- “7. The amended definition of "evidence" in section 3 of the Evidence Act, 1872 read with the definition of "electronic record" in section 2(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. In R.M Malkani vs. State of Maharastra - AIR 1973 SC 157 , this court made it clear that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. This Court further held that a contemporaneous electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8 of the Act. There is therefore no doubt that such electronic record can be received as evidence. 8. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate - 2009 (4) SCC 410 ]. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions. 9. There is no specific provision in the Code enabling the parties to re-open the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications. 10. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications. 10. The respondent contended that section 151 cannot be used for re-opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been explained by this Court in several decisions (See : Padam Sen vs. State of UP AIR 1961 SC 218 ; Ma noharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527 ; Arjun Singh vs. Mohindra Ku mar - AIR 1964 SC 993 ; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal AIR 1966 SC 1899 ; Nain Singh vs. Koon warjee - 1970 (1) SCC 732 ; The Newabganj Sugar Mills Co. Ltd. vs. Union of India AIR 1976 SC 1152 ; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi AIR 1977 SC 1348 ; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara 2005 (2) SCC 256 ; and Vinod Seth vs. Devinder Bajaj 2010 (8) SCC 1 ). We may summarize them as follows: (a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is ‘right’ and undo what is ‘wrong’, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process. (b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances. (c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances. (c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code. (d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature. (e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief. (f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court. 16. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. 16. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application.” Reading the decision indicated herein above, this Court finds, the Hon’ble apex Court has made clear observations that in such contingency, the satisfaction of the court taking into consideration is only to see the effective adjudication of the issue involved therein. The only restriction is to restrict such application if filed under the pretext of mischievous, frivolous or to cover up negligence or lacunae. The only restriction is to restrict such application if filed under the pretext of mischievous, frivolous or to cover up negligence or lacunae. The Hon’ble apex Court in clear terms held that the Civil Court in exercise of power under Section 151 of C.P.C. has ample power to see for the effective adjudication and this court observes, denial of such opportunity may cause disastrous end to the suit which can no more be curable. Further looking to the claim of the plaintiff to examine the further witnesses also comes within the purview of Order 18 Rule 17 of C.P.C. and as such, the trial court has the right application of the same. 6. Perusing the impugned order, this Court finds, the court taking up the rival contentions of the parties and considering the application under Order 18 Rule 17 of C.P.C. read with Section 151 of C.P.C. has a clear finding that denying examination of further witnesses to the plaintiff will end ineffective adjudication of the issue involved and the observation of the trial court has the full support of the decision of the Hon’ble apex Court referred to herein above. Since the petitioners confine their prayer to the effect of additional witnesses and did not pray for recalling of the witnesses with no additional facts or documents, there is no infirmity in the impugned order otherwise. The examination of further witnesses will however be confined to the pleading of both sides thus allowing the defendants to cross-examine the additional witnesses. Since the trial involving C.S. No. 21/2010 has already commenced, the trial court is directed to dispose of the suit by the end of November of this year. Both parties undertake that they will cooperate with the trial court in the timely disposal of the suit involved. 7. For the observations and discussions herein having the support of the decisions referred herein above, this Court while not finding any infirmity in the impugned order declines to interfere in the impugned order. The Civil Misc. Petition thus stands dismissed. No cost.