Devraj Singh Deo @ Devraj Singh v. Balangir District Central Cooperative Bank Limited
2017-05-03
A.K.RATH
body2017
DigiLaw.ai
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 11.12.2014 passed by the learned Civil (Junior Division), Balangir in C.S. No. 12 of 2004. By the said order, the learned trial court rejected the application of the plaintiff to adduce rebuttal evidence after the evidence of the defendants was closed. 2. The petitioner as plaintiff instituted the suit for realization of Rs.12,32,680/- with interest @18% impleading the opposite parties as defendants. Pursuant to issuance of summons, the defendants entered contest and filed a comprehensive written statement denying the assertions made in the plaint. Issues were settled. The plaintiff examined the witnesses. Thereafter the defendants examined the witnesses. After closure of the evidence from the side of the defendants, the plaintiff filed an application seeking liberty of the Court to adduce rebuttal evidence. It is stated that during course of examination of D.W.1, the personal file of the plaintiff was exhibited from the side of the defendants. In view of the same, the plaintiff intends to re-examine P.W.1 on the ground that he has not been afforded opportunity. The defendants filed objection stating therein that personal file of the plaintiff has been relied upon in the written statement. The plaintiff had knowledge about the said document. The plaintiff has also filed a petition for cause production of the original personal file of the plaintiff. D.W.1 has been thoroughly cross-examined. Thus, the petition is not maintainable. The learned trial court assigned the following reasons and rejected the same. “After hearing the respective counsels for the parties this court peruses the case record, including the present petition and objection. From the case record, it appears that plaintiff file the present petition after closer of evidence from either party. Besides this, it is further appeared from the case record that the personal file of plaintiff marked as Ext.S was though relied by the defendant in his W.S, but the same has not exhibited from the side of defendant, until petition from the side of plaintiff for recall of the above document was filed on dated 11.07.14, on account of cross examined D.W.1 in this regard.
So from the above, it is well cleared that the personal file of plaintiff is not only relied by the defendant in his W.S. but the same is with the knowledge of plaintiff since the day of filing of W.S. Hence in such circumstance, question comes whether in the present scenario plaintiff should get a chance to adduce rebuttal evidence by recalling P.W.1 on account of exhibiting the personal file of plaintiff at later stage. In this regard, this court is of opinion that plaintiff has very much knowledge about his personal file relied by the defendant in his W.S. That apart, in view of the above personal file plaintiff has already adduced his evidence. Again plaintiff by filing his petition on Dt:11.07.2014 call for the personal file from the custody of defendant and accordingly, cross examined D.W.1 thoroughly on this aspect. Considering the above aspect, this court is of opinion that the fact and circumstance of the cited decision is not applicable to the present case as because the present facts and circumstance in this case is totally different from the facts and circumstance of the cited decision. In the above view, this court is of the opinion that plaintiff has got enough opportunity to adduce rebuttal evidence to the personal file, since the date of filing of W.S. by defendant. Hence, any further evidence on account of recall of P.W.1 from the side of plaintiff to rebut the document bears no merit in present circumstance.” 3. Heard Mr. Sanjeev Udgata, learned Advocate for the petitioner. None appears for the opposite parties. 4. Mr. Sanjeev Udgata, learned Advocate for the petitioner submits that personal file of the plaintiff has been exhibited by the defendants. In view of the same, the plaintiff intended to re-examine P.W.1 since he has not previously got the opportunity. He submits that under Or.18 Rule 17 CPC, the Court may recall and examine witness. He relies on the decisions of the apex Court in the case of K.K. Valusamy v. N.Palanisamy, (2011) 11 SCC 275 and Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353 . 5. Dealing with the power and scope of the Court under Order 18 Rule 17 C.P.C., the apex Court in K.K. Valusamy’s case (supra) held :- “9.
5. Dealing with the power and scope of the Court under Order 18 Rule 17 C.P.C., the apex Court in K.K. Valusamy’s case (supra) held :- “9. 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 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). 10. 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. Order18 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. xxx xxx xxx 19. 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.
xxx xxx xxx 19. 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. xxx xxx xxx 21. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. The courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, re-opening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency.” 6. In Salem Advocate Bar Association, Tamilnadu (supra), the apex Court held that the omission of Order 18 Rule 2(4) by 1999 amendment does not take away the Court's inherent power to call for any witness at any stage either suo moto or on the prayer of a party invoking the inherent powers of the Court. 7. On the anvil of the decisions cited supra, the instant case be examined. The plaintiff filed a petition on 11.7.2014 to call for the personal file from the custody of the defendants. The same was exhibited from the side of the defendants. D.W.1 was cross-examined at length. Thus, the application to recall P.W.1 is ruse.
7. On the anvil of the decisions cited supra, the instant case be examined. The plaintiff filed a petition on 11.7.2014 to call for the personal file from the custody of the defendants. The same was exhibited from the side of the defendants. D.W.1 was cross-examined at length. Thus, the application to recall P.W.1 is ruse. The reasons assigned by the learned trial court cannot be said to be perfunctory or flawed warranting interference of this Court. The petition is dismissed. Since the evidence is closed, the learned trial court shall hear the argument of the parties and pronounce the judgment by end of June, 2017.