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2019 DIGILAW 2811 (RAJ)

Bharat Nagda v. A. k. Bhaskaran

2019-11-08

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - Instant writ petition has been preferred, feeling aggrieved of the order dated 14.10.2019, passed by District Judge, Dungarpur (hereinafter referred to as the 'trial Court'), whereby the application filed by the plaintiff - respondent under Order XVIII Rule 17 of the Code of Civil Procedure has been allowed. 2. The facts succinctly stated are that the respondent - A. K. Bhaskaran instituted a suit for declaration of the general power of attorney and consequential gift deed to be null and void. During pendency of the suit, PW.1 - Shri Manish M. Pailli appeared and led his evidence on behalf of the plaintiff; though another affidavit of the plaintiff had been filed, but since he could not appear, the plaintiff's evidence was closed on 01.07.2019. 3. The defendants also led their evidence and when the matter reached the stage of final hearing, the plaintiff moved an application on 23.09.2019 under Order XVIII Rule 17 of the Code and submitted that though the plaintiff had filed an affidavit in evidence on 25.02.2019, but since he was ill, he had to go to his native place at Kerala, for which he could not appear before the Court to complete his evidence. A leave was thus sought that his evidence be completed, by the subject application. 4. Learned trial Court by way of the order dated 14.10.2019, allowed such application and permitted the respondents to complete his evidence. 5. Learned counsel for the petitioner challenging the order aforesaid contended that the learned trial Court has erred in accepting the respondent's application and permitting him to appear in the witness box and get himself examined/crossexamined. He argued that the provisions of Order XVIII Rule 17 of the Code are meant to serve the cause of justice and the witness can be recalled only if certain questions/facts are required to be proved or clarification sought, but in case the witness does not appear at all in the witness box, he cannot be recalled in exercise of powers under Order XVIII Rule 17 of the Code. 6. In support of his cause, learned counsel relied upon the judgment of Hon'ble the Supreme Court in the case of Vadiraj Naggappa Vernekar (Dead) Vs. Shardchandra Prabhakar Gogate, (2009) 4 SCC 410 , particularly para Nos.25 and 26 thereof, which are being reproduced hereunder : "25. 6. In support of his cause, learned counsel relied upon the judgment of Hon'ble the Supreme Court in the case of Vadiraj Naggappa Vernekar (Dead) Vs. Shardchandra Prabhakar Gogate, (2009) 4 SCC 410 , particularly para Nos.25 and 26 thereof, which are being reproduced hereunder : "25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. 26. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared." 7. Learned counsel for the petitioners further placed reliance on another judgment of Hon'ble Supreme Court in the case of K. K. Velusamy Vs. N. Palanisamy, (2011) 3 RLW 2457 . 8. Heard learned counsel. 9. Indisputably the respondent/plaintiff had furnished his affidavit in evidence, however, due to indisposition, he had gone to his native place in Kerala and thus, could not appear before the trial Court for completion of his evidence. Soon after recovery from the illness, he moved an application in the suit and prayed that he be permitted to lead evidence. 10. In considered opinion of this Court, when an affidavit in evidence has been filed by a witness, in case due to unavoidable circumstances such witness does not appear before the Court for completion of his evidence, the Court can permit such person to come in the witness box to lead his evidence, in deserving cases. 11. So far as judgment of Hon'ble Supreme Court in the case of Vadiraj Naggappa Vernekar (supra) is concerned, the facts are starkly different. 11. So far as judgment of Hon'ble Supreme Court in the case of Vadiraj Naggappa Vernekar (supra) is concerned, the facts are starkly different. In the case aforesaid, the concerned witness had appeared in the witness box and tendered his evidence and thereafter additional affidavit was filed for which, Hon'ble the Supreme Court held that the provisions of Order XVIII Rule 17 of the Code are meant for clarification of the statement/evidence given by such witness and not filling up the lacuna. 12. As against this, the facts in the present case, as noticed above, are different; the plaintiff (respondent herein) having filed affidavit could not turn up in the witness box at all so as to lead his evidence. 13. The second judgment of Hon'ble Supreme Court in the case of K. K. Velusamy (supra) relied upon by the learned counsel for the petitioners also does not lend any help to the petitioners' cause, it rather fortifies the view taken by the trial Court. 14. Para No.16 of the judgment aforesaid is being reproduced hereunder : "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 bonafide 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. 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." 15. The above referred para of the judgment of K. K. Velusamy (supra) clearly shows that the trial Court can permit recalling of the witness in deserving cases. 16. As an upshot of above discussions, this Court neither finds any error in the order impugned nor does it find merit in the petitioners' contentions. 17. The trial Court has granted an opportunity to the plaintiff to lead his evidence, this Court sitting in supervisory jurisdiction is not inclined to upturn such indulgence granted by the trial Court, which was essentially with a view to ensure justice. 18. The writ petition, therefore, fails. 19. The stay application is also dismissed. 20. Needless to observe that the plaintiff will have to complete his evidence on the basis of the affidavit, he has filed; he shall not be permitted to file any other affidavit.