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2021 DIGILAW 353 (MAD)

Shakeela Asraf v. Sudhakar

2021-02-02

R.SUBRAMANIAN

body2021
JUDGMENT : R. SUBRAMANIAN, J. 1. The Plaintiff in O.S. No. 124 of 2009 is the Revision Petitioner. Challenge in these Revisions is to the Common Order made in I.A. Nos. 402 and 403 of 2013, dated 14.2.2014. These two Applications were filed by the Plaintiff seeking re-opening of the case and to recall PW-1 for the purpose of cross-examination by the Defendant. 2. The Suit is one for recovery of money based on a Promissory Note. The Defendant denied the borrowal as well as execution of the Promissory Note. The Plaintiff was examined as PW-1 on 12.4.2012 and Exts. A1 to A3 were marked. At that juncture, the Defendant came up with an Application to refer the document to an Expert for opinion on the signature of the Defendant. Cross-examination of the Plaintiff was deferred in view of the pendency of the said Application for reference of the document to the Handwriting Expert. Thereafter, the Suit was posted for cross-examination of PW-1. PW-1 did not appear for three hearings and hence, the Court closed the evidence of PW-1 and posted the Suit for further evidence on the side of the Plaintiff. One of the Attestors of the Promissory Note was examined as PW-2. Thereafter, the Defendant was examined as DW1 and the Expert was examined as DW-2. 3. After examination of DW2, the Plaintiff thought fit to come up with these Applications to re-open her evidence to enable the Defendant to cross-examine her. The learned I Additional District Judge, Tiruchirappalli, who heard the Applications, dismissed the same on the ground that it is not open to the Plaintiff to seek re-opening of the evidence after examination of further evidence on her side and completion of the Defendant's side evidence. Hence, these Revisions. 4. I have heard Mr. P. Samuel Gunasingh, learned Counsel appearing for the Petitioner and Mr. A.N. Ramanathan, learned Counsel for the Respondent. 5. While Mr. P. Samuel Gunasingh, learned Counsel appearing for the Petitioner would vehemently contend that the Trial Court was not right in dismissing the Applications on the ground that the other Witnesses have been examined. 4. I have heard Mr. P. Samuel Gunasingh, learned Counsel appearing for the Petitioner and Mr. A.N. Ramanathan, learned Counsel for the Respondent. 5. While Mr. P. Samuel Gunasingh, learned Counsel appearing for the Petitioner would vehemently contend that the Trial Court was not right in dismissing the Applications on the ground that the other Witnesses have been examined. Drawing my attention to the provision under Order 17, Rule 18, C.P.C., the learned Counsel would contend that it is open to the Court to re-open the evidence and recall a Witness at any time and what is sought for is only an opportunity to re-open the evidence and; the Court ought not to have adopted technical approach as has been done by the Trial Court. 6. Contending contra, Mr. A.N. Ramanathan, learned Counsel appearing for the Respondent would submit that the power to recall a Witness vests on the Court and the same cannot be doubted. However, the learned Counsel would submit that the power can be exercised only judiciously and not otherwise. Re-opening of the evidence should not be for the mere asking. The party, seeking re-opening of the evidence and recall of a Witness, must establish the need for such re-opening or recalling. The learned Counsel would further contend that the facts available in the case on hand would show that the Plaintiff has been negligent in prosecuting the case. After receipt of Expert's Opinion, the case was posted atleast three times for cross-examination and PW-1 was not present. The evidence was closed and the Plaintiff did not seek to re-open her evidence immediately but she chose to examine the Attesting Witness as PW-2. Thereafter, the Plaintiffs side evidence was closed. The Defendant was examined as DW1 and the Expert, who had given the opinion, was examined as DW2 and was cross-examined. After almost entire evidence had been completed, the Plaintiff has come with these Applications seeking to re-open the evidence and recall PW-1 for being examined by the Defendant. This, according to the learned Counsel, is impermissible. 7. I have considered the rival submissions. 8. As rightly submitted by the learned Counsel for the Respondent, the provision under Order 18, Rule 17, C.P.C. is very wide. The Court has discretion to recall any Witness at any time and put questions. This, according to the learned Counsel, is impermissible. 7. I have considered the rival submissions. 8. As rightly submitted by the learned Counsel for the Respondent, the provision under Order 18, Rule 17, C.P.C. is very wide. The Court has discretion to recall any Witness at any time and put questions. This Court in Vasantha and Others vs. Rathinasami and Others, 1988 (2) MLJ 192 , has held that such power can be exercised at the instance of a party also. 9. While allowing the Application under Order 18, Rule 17, C.P.C. the Court must see that the attempt is not to fill up lacunae or to undo the damage that has been done in cross-examining of other Witnesses of the Plaintiff. Such eventuality may not arise in this case inasmuch as recalling is not for the purpose of letting any fresh evidence but it is only for the purpose of cross-examining PW-1 by the Defendant so as to avoid technical objection at a later stage from, the Defendant that the Plaintiff had not made herself available for cross-examination and therefore, her evidence should not be looked into. Once it is found that the purpose of recalling is not to fill up a lacunae or to undo the damage that has been done during cross-examination of other Witnesses, I do not think there can be any serious objection for reopening of evidence of the Plaintiff and recalling PW-1 only for the purpose cross-examination by the Defendant. I am therefore of the considered opinion that the Trial Court was not right in dismissing the Applications on the ground that inevitable corollary is to eschew the evidence of PW-1 due to the absence of cross-examination. I do not think the Court should shut-down the evidence of a party by adopting technicality. In view of the same, the Common Order passed in I.A. Nos. 402 and 403 of 2013 in O.S. No. 124 of 2009 on the file of the 1st Additional District Judge, Trichy, dated 14.2.2014 is set aside. Evidence of Plaintiff is re-opened and PW-1 is recalled only for the purpose of cross-examination by the Defendant. It is made clear that the Plaintiff cannot take advantage of this order to cross-examine any other Witness on her side or to file further Proof Affidavit in chief-examination. 10. In fine these Civil Revision Petitions are allowed. No Costs.