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2019 DIGILAW 391 (AP)

YETRINATHALA SUBBULU NAIDU v. ALA NIRMALA

2019-12-30

M.SEETHARAMA MURTI

body2019
ORDER : M.Seetharama Murti, J. These two revision petitions, under Article 227 of the Constitution of India, are filed by the unsuccessful petitioners – plaintiffs, having been aggrieved of the common order, dated 06.06.2019, of the learned III Additional District Judge, Guntur, passed in IA.nos. 439 & 438 of 2019 in OS.no.62 of 2007 respectively filed for reopening of the evidence of the defendants and recall of DW1 for further cross examination after confronting to her, her deposition in OS.no.26 of 2009 on the file of Senior Civil Court, Kavali. 2. I have heard the submissions of learned counsel appearing for the revision petitioners -plaintiffs [‘plaintiffs’, for brevity]; and, of the learned counsel appearing for the 1st respondent – 1st defendant [‘1st defendant’, for brevity]. Respondents 2 to 7 are stated to be not necessary parties. I have perused the material record. 3. The case of the plaintiffs in support of the aforesaid requests is this: -‘They filed the suit for declaration of titles and consequential perpetual injunctions in respect of the plaint schedule properties. The 1st defendant was examined as DW1 in the present suit. She was cross examined. She figured as a witness – DW2 in OS.no.26 of 2009 on the file of Senior Civil Court, Kavali. During her cross examination in the said suit, she testified that she and her husband, Prabhakara Rao, resided together till the death of her husband; that exhibit A2 therein is the certified copy of the registered settlement deed, dated 24.08.2011, executed in her favour by the 1st defendant therein, that is, her husband (since died); and, that she & her husband purchased Ac.4.00 cents of land with the income derived from the sale of the gold ornaments belonging to her and her husband. But, in the present suit, she is contesting that she had separated from her husband by taking a stand, which is contrary to her testimony in the aforesaid suit, OS.no.26 of 2009 on the file of Senior Civil Court, Kavali. Therefore, it has become necessary to seek reopening of the evidence and recall her (DW1) to cross examine her by confronting to her, her deposition in OS.no.26 of 2009. 4. The 1st respondent herein – DW1 opposed for allowing of the applications of the plaintiffs, inter alia, stating that the plaintiffs are un-necessarily filing petitions after petitions to drag on the matter. 5. 4. The 1st respondent herein – DW1 opposed for allowing of the applications of the plaintiffs, inter alia, stating that the plaintiffs are un-necessarily filing petitions after petitions to drag on the matter. 5. On merits and by the common order impugned in these revisions, the trial Court dismissed both the applications. Therefore, the plaintiffs are before this Court. 6. Learned counsel for the plaintiffs, while reiterating the pleaded case of the plaintiffs, which is extracted supra in detail, contended that the 1st defendant – DW1 in the present suit, having contended and deposed that she had separated from her husband long time back and that she filed a suit for partition & maintenance claiming a charge on ‘A’ schedule properties in the suit, gave evidence to the contra as DW2 in OS.no.26 of 2009 on the file of Senior Civil Court, Kavali. In view of her contradictory versions, it has become necessary to seek reopening of the evidence and permission to cross examine her with reference to her testimony in OS.no.26 of 2009 by confronting the relevant portions of her deposition in the said suit. 7. Per contra, learned counsel for the 1st defendant – DW1 supported the common order passed by the trial Court and contended as follows: -‘As rightly held by the Court below, the evidence of 1st defendant as DW1 in the present suit concluded in March, 2018 whereas she gave evidence as DW2 in OS.no.26 of 2009 in September, 2018. Therefore, the deposition, which the plaintiffs want to confront to DW1, is her subsequent statement and it is not her prior statement. Under Sections 145 & 155 of the Indian Evidence Act, a witness can be contradicted by utilising her previous statement but not a subsequent statement made on oath. Hence, the plaintiffs are not entitled to seek permission to recall DW1 for cross-examination on confronting her testimony made subsequently in OS.no.26 of 2009.’ 8. I have given earnest consideration to the facts & submissions. 9. It is not in dispute that in the present suit, DW1 is contesting that she had separated from her husband long time back; and it is also not in dispute that she filed OS.no.406 of 1989 on the file of learned Senior Civil Judge’s Court, Guntur, for partition and maintenance and that in the said suit, she sought charge on plaint ‘A’ schedule properties. It is also not in dispute that DW1 in the present suit figured as DW2 in OS.no.26 of 2009 on the file of learned Senior Civil Judge’s Court, Kavali, and deposed in the said suit. According to the plaintiffs, in her subsequent deposition as DW2, in OS.no.26 of 2009, she gave a quite contradictory version to her version in the present suit and that in her testimony as DW2 in OS.no.26 of 2009, she deposed that she resided along with her husband till her husband’s death and that she and her husband purchased Ac.4.00 cents of land with the income derived from sale of gold ornaments and that a registered settlement deed, dated 24.08.2011, was executed in her favour by the 1st defendant therein (her deceased husband). In view of the two contradictory versions, the plaintiffs sought the permission of the trial Court to recall DW1 for cross examining her by confronting her subsequent testimony in the above said suit. Since her deposition as DW2 in OS.no.26 of 2009 is subsequent to her deposition in the present suit as DW1, the plaintiffs cannot be found fault for not cross examining her on the aspects covered by her deposition as DW2 in OS.no.26 of 2009 as the said deposition is a later deposition of the 1st defendant – DW1. Section 145 of the Indian Evidence Act, envisages that a witness may be cross examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question and that the testimony of a witness can be contradicted by drawing his attention to the writings, which are to be used for the purpose of contradicting his statement. Section 155 of the said Act, which deals with impeaching credit of witness postulates that the credit of a witness may be impeached by the adverse party by proof of former statements inconsistent with any part of his evidence, which is liable to be contradicted. Be that as it may. 10. Section 155 of the said Act, which deals with impeaching credit of witness postulates that the credit of a witness may be impeached by the adverse party by proof of former statements inconsistent with any part of his evidence, which is liable to be contradicted. Be that as it may. 10. Order XVIII Rule 17 of the Code of Civil Procedure, 1908, reads as under: “Court may recall and examine witness: The Court may at any stage of 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.” It is apt to now refer to the following decisions: In Vadiraj Naggappa Vernekar (Dead) Through L.Rs. v. Sharadchandra Prabhakar Gogate (2009) 4 SCC 410 , at paragraphs-25, 28 and 29 it was held as follows: 25. In our view, though the provisions of Order 18 Rule 17 Code of Civil Procedure 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. xxx 28. The power under the provisions of Order 18 Rule 17 Code of Civil Procedure is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 Code of Civil Procedure. 29. It is now well settled that the power to recall any witness Under Order 18 Rule 17 Code of Civil Procedure can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. In K.K. Velusamy v. N. Palanisamy: (2011)11 SCC 275 , while following the principles articulated in Vadiraj (supra) it was held at paragraphs 9,10 and 11 as follows: 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. 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. 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. 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. 11. The above said legal position, which is well settled, is beyond doubt. When there are two versions of a witness, which according to the adverse party are contradictory and inconsistent, it is always necessary to get a clarification from the witness and in such cases the power to recall any witness can be exercised by the Court either on its own motion or on the application filed by any of the parties requesting the Court to exercise the said power and seek assistance of the parties in putting relevant questions to such witness. The said power being discretionary shall be used in appropriate cases to enable the Court to clarify any doubts that may arise in view of the contradictory versions of the witness given in two judicial proceedings. If the requests of the plaintiffs are denied, the same may result in allowing the DW1 herein in getting away unbridled and unchecked, though it is being stated by the plaintiffs that she has taken contradictory stands in the two suits. The said conduct of DW1 in taking two contradictory stands, if true, and if remains unchecked even when brought to the notice of the Court, would tantamount to allowing her to abuse the process of the Court. Therefore, in the well thought-out view of this Court, allowing of the request of the petitioners/plaintiffs is necessary for the ends of justice and to prevent the abuse of the process of the court. 12. Therefore, in the well thought-out view of this Court, allowing of the request of the petitioners/plaintiffs is necessary for the ends of justice and to prevent the abuse of the process of the court. 12. For the aforesaid reasons, this Court is of the considered view that the Court below misdirected itself in not granting the request of the plaintiffs to reopen the evidence and recall DW1 for further cross examination after confronting to her, the writings in her deposition subsequently given as DW2 in OS.no.26 of 2009. Therefore, this Court holds that the order impugned brooks interference. 13. In the result, both the Civil Revision Petitions are allowed and the common order is set aside and IA.nos.438 & 439 of 2019 are allowed. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.