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2017 DIGILAW 1238 (HP)

Hari Krishan @ Krishan v. Satish Kumar Sharma

2017-11-08

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. Defendant’s application filed under Order XVIII Rule 17 CPC, praying for re-examining the plaintiffs’ witness, as defendant’s suggestion of being in possession of the suit property, so put during the course of cross examination, was inadvertently left out from being recorded in the testimony, stands rejected by the trial Court vide impugned order dated 23.6.2016, passed in Civil Suit No. 35-1 of 2015/09, titled as Satish Kumar Sharma & others vs. Hari Krishan, (Annexure P-7). 2. Plaintiffs filed a suit seeking declaration qua the status and right & title of the defendant in the suit property. Defendant refuted the allegations, setting up his title. 3. On 21.11.2009, trial Court framed as many as fifteen issues. Record reveals that after a period of three years, on 17.10.2012, plaintiffs examined four witnesses. Thereafter, plaintiff No. 1 Satish Kumar Sharma was examined and his statement runs into 20 pages. It was recorded on 13.7.2015. Further two more witnesses were examined on 13.8.2015, on which date plaintiffs closed their evidence, where after matter was adjourned for 10.9.2015 for examination of defendant’s witnesses. 4. Instead of leading evidence on 10.9.2015, defendant moved the application in issue, seeking recall of witness Satish Kumar Sharma, inter alia, for the following reason: “4. That in order to prove the case, the non-applicant No. 1 namely Satish Kumar stepped into the witness box and appeared as PW-1 on dated 13-07-2015. On 13-7-2015 this witness was cross examined on behalf of the applicant/defendant. Specific suggestions were given to this witness i.e. PW-1 (plaintiff No. 1 Satish Kumar) on behalf of applicant/defendant that as per the family arrangement of partition of the suit land, in between Sh. Geeta Ram predecessor in interest of non-applicant and Sh. Hari Krishan, applicant/defendant is in possession of that part of suit land which is also recorded so and that the possession of the applicant over that part of suit land is from the time of Sh. Geeta Ram. These suggestions however denied by the non-applicant No. 1/PW-1.” 5. Plaintiffs denied the same in the following terms: “4. That the contents of para 4 are denied as being wrong and frivolous. It is submitted that the reason as assigned by the applicant is nothing but just an afterthought to fill in the lacunas as submitted supra.” 6. Geeta Ram. These suggestions however denied by the non-applicant No. 1/PW-1.” 5. Plaintiffs denied the same in the following terms: “4. That the contents of para 4 are denied as being wrong and frivolous. It is submitted that the reason as assigned by the applicant is nothing but just an afterthought to fill in the lacunas as submitted supra.” 6. Having heard learned counsel for the parties as also perused the record, this Court is unable to persuade itself to interfere with the impugned order, so assailed in a petition filed under Article 227 of the Constitution of India. It cannot be said that the court below failed to exercise its jurisdiction or in the exercise thereof, it committed any illegality or material irregularity. Also the order cannot be said to be perverse. Though specifically not pleaded, but defendant finds fault with the trial Court in not correctly recording the statement of the witness. Well aspersions, though oblique, are not well founded and are totally unsustainable. 7. Record reveals that the case is hotly contested. Almost on every date of hearing, learned counsel for both the parties have been appearing. 8. Statement of witness Satish Kumar Sharma (PW-5) sought to be recalled was recorded on 13.7.2015. It is hand written and runs into twenty pages. In fact, cross-examination part of the testimony itself runs into sixteen pages. The handwriting is clear, legible and readable. The witness, after reading the statement has signed the same. It is not the case of the defendant that statement of the witness was recorded in a casual manner or not under the direct supervision of the Presiding Officer or in the absence of the learned counsel. As such, this Court is not inclined to accept the contention that suggestion of the defendant of being in possession of the suit land, by virtue of a family settlement, though put to the witness, was inadvertently left out from being recorded. Also, application is not accompanied by affidavit of the learned counsel. 9. That apart, one finds that subsequently on 13.8.2015, two other witnesses of the plaintiffs were examined, when also no objection was raised or matter brought to the notice of the Court by the parties or their counsel. 10. There is nothing on record to establish that certified copies of the statements were either applied for or obtained only with the closure of plaintiffs’ evidence. 11. 10. There is nothing on record to establish that certified copies of the statements were either applied for or obtained only with the closure of plaintiffs’ evidence. 11. Order XVIII Rule 17 CPC reads as under: “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. Now court cannot exercise such power for filling up lacuna, if any, or correct the mistake of the party. Discretion has to be exercised judiciously. The power is wide and can be exercised at any time prior to the pronouncement of the judgment, but to remove ambiguity or omission. It has to be exercised with great care and in exceptional circumstances and that also only to prevent failure of justice. [Soma Devi vs. Guin Devi & others, AIR 2003 HP 158 ]. 13. The basic purpose of Rule 17 is to enable the Court to clarify any position or doubt, and the Court may, either suo motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the Court recalls the witness for the purpose of any such clarification, the Court may permit the parties to assist the Court by examining the witness for the purpose of clarification required or permitted by the Court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. “No prejudice is caused to either party” is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the Court but to be used only sparingly, and in case, the Court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground [Ram Rati vs. Mange Ram (Dead) through LRs & others, (2016) 11 SCC 296 ]. 14. The power under Section 151 or Order XVIII Rule 17 CPC is not intended to be used routinely, merely for the asking. 14. The power under Section 151 or Order XVIII Rule 17 CPC 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, it 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. [Bagai Construction vs. Gupta Building Material Store, (2013) 14 SCC 1 and K.K. Velusamy vs. N. Palanisamy, (2011) 11 SCC 275 ] 15. The apex Court in Vadiraj Naggappa Vernekar (Dead) through LRs. vs. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 , observed that: “31. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the court’s discretion, if it deems fit, to allow such an application.” 16. As such, finding no merit in the present petition, the same is dismissed. 17. One finds that the parties have been litigating since the year 2009. As such trial is expedited with a direction that suit be positively decided within a period of one year. Parties are directed to appear before the trial Court on 30th November, 2017. Records be immediately sent back. Registry to take appropriate action. Pending applications, if any, also stand disposed of accordingly.