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2017 DIGILAW 998 (ORI)

Rajanikanta Mohanty v. Smruti Bisoi

2017-09-08

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This Civil Miscellaneous Petition involves a challenge to the impugned order at Annexure-6 rejecting an application at the instance of the defendant Nos. 2 to 5 under Order 18 Rule 17 of C.P.C read with 151 of C.P.C. 2. Short background involved in the case is that after examination of D.W. 6 finding inadvertent omission in the affidavit in evidence submitted on behalf of the D.W. 6, an application under Order 18 Rule 17 of C.P.C. read with Section 151 of C.P.C was filed with a prayer to recall the D.W. 6 for his further examination in chief on the points indicated therein. On their appearance the defendant Nos.8 & 9 filed objection challenging the maintainability of the application and further, resisting the attempt of the petitioners on the premises that in the event of allowing such an application the defendant No.5 will be allowed to fill up the lacunas, which is not permissible in the eye of law. There was no objection by the other defendants except plaintiffs and defendant nos.8 & 9. Considering the rival contentions of the parties, learned trial Court further taking into consideration a decision of the Hon’ble Apex Court in the case in between Ram Rati v. Manage Ram (D) Through Lrs. as reported in 2016 (Supp.-I) OLR (SC) 938 rejected the application giving rise the present Civil Miscellaneous Petition. 3. Assailing the impugned order, referring to the response in paragraph No.8 of the written statement so also referring to the application under Order 18 Rule 17 read with Section 151 of C.P.C learned counsel for the petitioners submitted that though the examination of D.W. 6 is over but there has been bona fide omission of certain questions. 3. Assailing the impugned order, referring to the response in paragraph No.8 of the written statement so also referring to the application under Order 18 Rule 17 read with Section 151 of C.P.C learned counsel for the petitioners submitted that though the examination of D.W. 6 is over but there has been bona fide omission of certain questions. Sri Baug, learned counsel for the petitioners further submitted that though the application considered in the impugned order was nomenclated as an application under Order 18 Rule 17 read with Section 151 of the C.P.C but looking to the prayer made therein, it appears, the application was to be treated as an application under Section 151 of the C.P.C. The trial Court on the premises that application at the instance of the petitioners being filed under Order 18 Rule 17 referring to a decision of the Hon’ble Apex Court dealing a matter strictly involving provision at Order 18 Rule 17 of C.P.C rejected the application without considering the fact that the petitioners have moved an application following Section 151 of C.P.C. Referring to a decision in the case in between Salem Advocate Bar Association, T.N. v. Union of India as reported in 2005(VI)SCC344 particularly referring to the paragraph No.13 of the said decision, learned counsel for the petitioners submitted that the test of the moment was to find out whether the party satisfied that even after exercise of due diligence that part of the evidence was not within his knowledge or could not be produced when the party was leading evidence, the Court may permit for leading of such evidence at a later stage on such terms appears to be just. 4. Further, referring to a decision of the Hon’ble Apex Court in the case in between K.K. Velusamy v. N. Palanisamy as reported in (2011) II SCC 275 particularly referring to paragraph Nos.3, 10 & 11 of the said decision, Sri Baug, learned counsel submitted that for the observation of the Hon’ble Apex Court that for the request in such contingency, the matter should have been considered in exercise of power under Section 151 of C.P.C rather than confining the consideration under the provisions of Order 18 Rule 17 of C.P.C. 5. Referring to another decision of this Court in the case in between U.K. Ghosh v. M/s. Voltas Ltd., and another as reported in AIR 1994 Orissa 131 particularly referring to the paragraph No.4 of the judgment learned counsel for the petitioners submitted that this Court had only observation that this nature of application cannot be entertained for the reason there is an attempt to fill up the lacunas. 6. Challenging the order, referring the judgment of the Hon’ble Apex Court by the trial Court, Sri Baug, learned counsel for the petitioners further referring to the facts available therein, the averments and findings of the Hon’ble Apex Court submitted that the decision of the Hon’ble Apex Court involved only consideration of the effect of Order 18 Rule 17 of C.P.C and claimed that the decision is clearly distinguishable. It is under the above premises, learned counsel for the petitioners prayed for interference of this Court in the impugned order and rejecting the same. 7. Sri J. Mohanty, learned counsel for the defendant Nos.8 & 9 in the Court below referring to the objection filed by the defendant Nos.8 & 9 and further referring to the provision contained in Order 8 Rule 1 of C.P.C as well as the decision of the Hon’ble Apex Court as reported in 2016(Sup.-I) OLR SC 938 contended that under no circumstance, attempt to fill up the lacunas in the affidavit evidence already submitted, can be permitted. It is, thus, contended that the trial court having relied on this decision has not committed any error in passing the impugned order leaving any scope to interfere with the same. 8. Sri R. Routray, learned counsel for the opposite party Nos.1 to 3 supported the stand taken by Sri J. Mohanty, learned counsel and submitted that for having no infirmity, the impugned order leaves no scope for this Court to interfere with the same. 9. Considering the rival contentions of the parties, this Court finds, there is no dispute that the petitioners have specific pleading involving the requirement of further examination of D.W. 6 as clearly borne from paragraph No.8 of the Additional written statement. 9. Considering the rival contentions of the parties, this Court finds, there is no dispute that the petitioners have specific pleading involving the requirement of further examination of D.W. 6 as clearly borne from paragraph No.8 of the Additional written statement. Looking to the application filed by the petitioners this Court finds, though the petitioners have nomenclated the application to be an application under Order 18 Rule 17 of C.P.C read with 151 of C.P.C., but looking to the prayer made therein this Court finds, the petitioners have also specific prayer to recall D.W. 6 for his further examination in chief on the points stated therein. Reading of the application and the response in the additional written statement this Court finds, the petitioners’ attempt remaining with the pleadings already available on record, it is at this stage this Court takes into consideration the submission of the learned counsel for the opposite party nos.6 & 7 that the petitioners since have scope for putting such questions to the other defendants available for chief no further examination of the D.W. 6, will not prejudice the case of the petitioners, this Court observes, since evidence left out can be brought through other defendants, it is, on the other hand, there will be no prejudice if such evidence is brought through further chief of the D.W. 6. 10. Now coming to examine the decisions cited at Bar, this Court dealing with the decisions taken reliance by the trial court as reported in 2016(Sup.-I) OLR SC 938 finds from paragraph no.1 of the said decision as follows : “Whether a witness can be recalled under Order 18 Rule 17 of C.P.C for further elaboration of aspects left out in evidence already closed is the issue for consideration in this case.” 11. Looking to the discussions and findings of the Hon’ble Apex Court in the case referred to hereinabove, this Court finds, the case was considered in the spirit of the provision available under Order 18 Rule 17 of C.P.C exclusively. Further, for the clear pleading as well as prayer of the petitioners in the application taken up for consideration in the trial Court for further examination in the chief in D.W. 6, the decision referred to hereinabove has no application to the present case. 12. Further, for the clear pleading as well as prayer of the petitioners in the application taken up for consideration in the trial Court for further examination in the chief in D.W. 6, the decision referred to hereinabove has no application to the present case. 12. Considering the decision cited by the learned counsel for the petitioners in the case in between K.K. Velusamy v. N. Palanisamy as reported in (2011) II SCC 275 and looking to the specific relief claimed therein, this Court finds, the Hon’ble Apex Court in paragraph Nos.7, 8, 9, 10, 11 & 16 has observed as follows: “7. The amended definition of “evidence” in Section 3 of the Evidence Act, 1872 read with the definition of “electronic record” in Section 2(1)(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of the 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. 8. In R.M. Malkani v. State of Maharashtra 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. 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. 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 Gogate2.) 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. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, 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. 11. There is no specific provision in the Code enabling the parties to reopen 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 court 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 reopening 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 reopen the evidence and/or recall witnesses for further examination. In the absence of any provision providing for reopening 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 reopen 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. 16. Neither the trial court nor the High Court considered the question whether it was a fit case for exercise of discretion under Section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings.” For the decision of the Hon’ble Apex Court considering such nature of cases in the spirit of provision at Section 151 of C.P.C this Court finds, the decision referred to hereinabove has a clear support to the petitioners’ case. 13. For the observation of this Court that the petitioners had moved the application also for consideration of the Court applying the provision of Section 151 of C.P.C and further, for the attempt of the petitioners is not going beyond the pleadings available in the additional written statement and for the petitioners having a scope to bring this evidence by examining the other defendants available for the purpose of chief and further for the scope of defendants to have the scope of cross examination and for the decision of the Hon’ble Apex Court in the case in between K.K. Velusamy v. N. Palanisamy as reported in (2011) II SCC 275 this Court finds, the observation as well as the findings of the trial Court are improper and the impugned order having been passed without consideration of all the above aspects cannot be sustainable in the eye of law. 14. 14. Under the circumstances, while interfering with the impugned order this Court sets aside the order vide Annexure-6 and allows the application at the instance of the petitioners vide Annexure-4 and directs the trial Court to fix a date for appearance of the D.W. 6 for further examination with liberty to the contesting parties to cross examine the D.W. 6 to be produced for further examination. Further considering that there is delay in disposal of the suit of the year 2005 and keeping the request of Sri Mohanty, learned counsel for the opposite party Nos.6 & 7, this Court directs the learned Civil Judge (Sr. Divn.), Bhubaneswar to conclude the trial within two months from the date of receipt of a certified copy of this judgment. This Court also records the undertaking of all the counsels appearing that respective parties will not resort to unnecessary adjournment. 15. The writ petition succeeds and in the circumstances, there is no order as to cost.