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2019 DIGILAW 339 (KAR)

G. R. Srinivas Reddy @ Babu v. Rekha Rai Hamilton

2019-02-04

S.SUJATHA

body2019
JUDGMENT : S. SUJATHA, J. 1. The petitioner has assailed the order dated 15.09.2016 passed on I.A.No.34 and I.A.No.35 in O.S.No.1518/2004 on the file of the I Additional Senior Civil Judge, Bengaluru Rural District at Bengaluru. 2. The plaintiff Nos.1 to 3/respondents Nos.1 to 3 filed a suit in O.S.No.1518/2004 against the defendants seeking cancellation of the sale deeds executed by defendant Nos.1 to 3 in favour of defendant No.4. Defendant No.4 filed written statement denying the case of the plaintiffs. During the pendency of the suit proceedings, defendant No.4/petitioner filed I.A.No.34 under Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure (CPC) and I.A.No.35 under Section 151 of CPC seeking to reopen the evidence of PW1 and to permit defendant No.4 to further cross-examine PW.1. Plaintiffs filed objections to the same. After hearing both the parties, the Trial Court rejected the applications filed by the petitioner. Hence, these writ petitions. 3. Learned Senior Counsel Sri Jayakumar S. Patil representing the learned counsel on record would submit that after the cross-examination of PW1, subsequent events had occurred. Plaintiff No.4 was impleaded, who was set up by the plaintiff Nos.1 to 3 with an ulterior motive to fill the vacuum created by the plaintiff 1 to 3. Additional plaintiff No.4 adopted the evidence lead in by PW.1. Hence, it was necessary for the petitioner to cross-examine PW1 on additional material brought on record. The Trial Court failed to appreciate the material aspect as aforesaid and proceeded to reject the applications, which resulted in miscarriage of justice. 4. Learned counsel Sri. M. Arun Ponappa appearing for the contesting respondent Nos.1 to 3 argued that no satisfactory explanation was offered by the petitioner to recall the witness-PW.1. The reasons assigned are vague and not supported by any substantial evidence. The new ground urged by the petitioner in the present writ petitions cannot be countenanced since no such grounds were urged before the Trial Court. If entertained, certainly it would deprive the rights of the contesting respondents to rebut the same. Reference was made to the judgment of the Apex Court in the case of M/s. Bagai Construction Thr. Its Proprietor Lalit Bagai vs. M/s. Gupta Building Material Store reported in, (2013) AIR SC 1849 and the order of this Court in the case of N.M. Viswanath vs. B.V. Nanjundappa since dead by L.Rs. Reference was made to the judgment of the Apex Court in the case of M/s. Bagai Construction Thr. Its Proprietor Lalit Bagai vs. M/s. Gupta Building Material Store reported in, (2013) AIR SC 1849 and the order of this Court in the case of N.M. Viswanath vs. B.V. Nanjundappa since dead by L.Rs. and another reported in, 1995 5 KantLJ 273. 5. I have bestowed my thoughts to the rival submissions made by the learned counsel for the parties and perused the material on record. 6. An application under Order 18 Rule 17 of CPC provides for the Court at any stage of a suit to 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. In the case of Gayathri vs. M. Girish reported in, (2016) 14 SCC 142 , the Hon'ble Apex Court has referred to the paragraphs of K.K. Veluswamy vs. N. Palanisamy reported in, (2011) 11 SCC 275 and the same is quoted hereunder for ready reference:- "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." 7. 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." 7. Analyzing the provisions of Order 18 Rule 17 of CPC in the light of the said judgment, it can be held that the said provisions has to be sparingly invoked and not in a routine manner to accede to the request of the parties to recall and further examine the witness. 8. As could be seen from the material available on record, nothing has been indicated from the affidavit filed by the applicant/petitioner to satisfy the Court to invoke Order 18 Rule 17 of CPC. 9. The Trial Court has recorded that the defendant No.4/petitioner in his affidavit filed along with the application stated that previous counsel has not cross-examined PW1 properly. Therefore, he has changed his advocate. His present advocate has instructed him that PW1 is required to be recalled for cross-examination on material aspects of the case. It is also recorded that PW1 has been thoroughly cross-examined and thereafter, defendant No.4/petitioner has been cross-examined. Under the circumstances, there is no necessity to recall PW1 again. 10. It is well settled law that the power under Article 227 of the Constitution of India is exercisable only for ensuring that the subordinate Courts function within the limits of their authority. 11. The endeavour of the petitioner appears to overcome lacuna in the pleadings and evidence, which cannot be permitted in a routine manner just for the request made. The object of Order 18 Rule 17 of CPC is to ensure assistance to the Court in rendering justice but not to protract the proceedings. Filing of successive frivolous applications is mischievous and deserves to be rejected. This view is fortified by the judgment of the Hon'ble Apex Court in M/s Bagai Construction supra. The new grounds urged in the writ petitions would not improve the case of the petitioner. 12. In the light of the aforesaid discussions, it can be held that no right is vested on the petitioner to recall the witness, but it is the discretion of the Court to exercise the power to recall any witness who has been examined. The new grounds urged in the writ petitions would not improve the case of the petitioner. 12. In the light of the aforesaid discussions, it can be held that no right is vested on the petitioner to recall the witness, but it is the discretion of the Court to exercise the power to recall any witness who has been examined. The same being exercised judiciously by the Trial Court, no exception can be found with the order impugned. Writ petitions are bereft of any substance and stand dismissed.