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2022 DIGILAW 798 (AP)

D. Malini v. T. Damodaram

2022-08-25

B.S.BHANUMATHI

body2022
JUDGMENT B.S. Bhanumathi, J. - This Civil Revision Petition, under Article 227 of the Constitution of India, is preferred against the orders, dated 26.03.2021, passed in I.A. No. 173 of 2021 in O.S. No. 204 of 2015 on the file of the Court of III Additional District Judge, Tirupathi, Chittoor District. 2(a). The facts, in brief, are that the plaintiff filed the suit on the basis of an alleged fabricated pronote and the plaintiff himself was examined as PW1. On the side of the defendants, DWs. 1 to 3 were examined and certain documents were marked. During the course of trial, while examining PW1, the learned counsel for the plaintiff has not put some of the relevant questions with regard to the execution of the pronote and the signature on it. Hence, the present application has been filed by the petitioner/defendant under Order XVIII Rule 17 CPC seeking to recall PW1 for the purpose of further cross-examination. 2(b). The respondent/plaintiff filed counter denying the petition averments and contending that the chief affidavit of the plaintiff was filed on 05.09.2018. The counsel for the defendant, by name Sri P.V.S. Naveen Prasad, cross-examined the plaintiff on 09.07.2019. Another counsel of the defendant, by name, Sri I. Guruswamy has further cross-examined the plaintiff and put some questions regarding the pronote. Thus, two different counsels cross-examined the plaintiff and the present petition, after completion of cross-examination of the plaintiff, at this belated stage, shows the mala fide intention of the defendant. The counsels for the defendant cross-examined plaintiff/PW1 as well as PWs. 2 & 3 and the evidence of the plaintiff was closed. Defendants' evidence was also closed. This application is nothing but an attempt to fill up the lacunae in the evidence of the defendant. The power of the Court under Order XVIII Rule 17 CPC is discretionary and has to be exercised with great care and only exceptional circumstances. Hence, the petition is liable to be dismissed. 3. The trial Court, on a consideration of facts and circumstances of the case and to give one more opportunity to the petitioner and to arrive at a just conclusion, by order, dated 26.03.2021, allowed the petition subject to payment of costs of Rs. 1,000/- payable by the defendant to the plaintiff on or before 06.04.2021. 4. Aggrieved thereby, the plaintiff is before this Court. 1,000/- payable by the defendant to the plaintiff on or before 06.04.2021. 4. Aggrieved thereby, the plaintiff is before this Court. In the grounds of revision, while reiterating the case pleaded, it is mainly contended that the only averment made by the respondent in the affidavit filed in support of the application is that 'while examining PW1, the counsel of the defendant has not put some of the relevant questions with regard to execution of the pronote and with regard to signature on the pronote' and that the trial Court failed to consider the fact that application under Order XVIII Rule 17 CPC is not meant for filling up the lapses and lacunae in the evidence of the witness. 5. Heard Sri Mahadeva Kanthrigala, the learned counsel for the revision petitioner and Sri Chetluru Sreenivas, the learned counsel for the respondent. 6. The main ground for seeking recall of the witness is that while examining PW1, the counsel for the petitioner has not put some relevant questions with regard to execution of the disputed promissory note and the signature thereon. 7. The petition was mainly opposed on the ground that the reason stated is very vague and wide and such request cannot be allowed to fill laches and lacunae in the evidence already led since the discretion under Order XVIII Rule 17 cannot be exercised in a routine course, but must be sparingly used in exceptional circumstances. 8. The learned counsel for the revision petitioner/plaintiff relied on the decision in Vadiraj Naggappa Vernekar (Dead) through LRs v. Sharadchandra Prabhakar Gogate (2009) 4 Supreme Court Cases 410, wherein it was held that the discretion under Order XVIII Rule 17 CPC 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 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. The Hon'ble apex Court expressed its view that the main purpose of Order XVIII Rule 17 CPC 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 and the said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. The Supreme Court has not accepted the contention that such power under Order XVIII Rule 17 CPC can be exercised to prevent prejudice to a party for the lapses or omissions of an advocate appearing for such party or that it does not cause prejudice to the other party merely by recalling the witness. The Supreme Court declined the argument that after recalling the witness, the other party will have a chance for further examination of the same party. In this case, there is a reference to the decision of Allahabad High Court in Sunder Theatres v. Allahabad Bank [ AIR 1990 All 14 ], wherein, while dealing with the similar question, the High Court held that the power under Order XVIII Rule 17 CPC is discretionary and has to be exercised with the greatest care and only in exceptional circumstances. Thus, the scope of Order XVIII Rule 17 CPC has been narrowed down rather than enlarging for its application in a routine course and for mere asking sake on the ground that it would not cause prejudice and hardship to the other party. 9. The learned counsel for the respondent/defendant herein further placed reliance on the decision of the Supreme Court in Bagai Construction through its Proprietor Lalit Bagai v. Gupta Building Material Store (2013) 14 Supreme Court Cases 1, wherein, apart from considering the decision in Vadiraj Naggappa Vernekar (2009) 4 Supreme Court Cases 410 (supra), the Supreme Court has referred to the subsequent decisions in K.K. Velusamy v. N. Palanisamy (2011) 11 SCC 275 . In the case of K.K. Velusamy (2011) 11 SCC 275 (supra), at paragraph No. 19, it was held that the power under Section 151 CPC or Order 18 Rule 17 CPC 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. In the case of K.K. Velusamy (2011) 11 SCC 275 (supra), at paragraph No. 19, it was held that the power under Section 151 CPC or Order 18 Rule 17 CPC 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, Court may exercise its discretion to recall the witnesses. However, the Supreme Court specified measures, to ensure that the process does not become a protracting tactic, that 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; and 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. 10. Applying the said principle, the Supreme Court in Bagai Construction (2013) 14 Supreme Court Cases 1 (supra), decided the matter before it by declining to receive additional documents which were already available with the party since the beginning, but offered to file them at the fag end of the suit, i.e., at the stage of argument, as their copies were initially filed and their originals were sought to be filed at the fag end. That apart, the Supreme Court observed that it has repeatedly held that the Courts should constantly endeavour to follow such a time schedule and if the same is not followed, the purpose of amending several provisions in the Code would get defeated. 11. Keeping in view the above propositions, facts and circumstances in each case are to be examined to decide whether the petitioners should be permitted to recall a witness. To know whether such recalling of a witness is necessary, the petitioners must provide some material ground enabling the Court to give reasons either to grant or decline such relief. 11. Keeping in view the above propositions, facts and circumstances in each case are to be examined to decide whether the petitioners should be permitted to recall a witness. To know whether such recalling of a witness is necessary, the petitioners must provide some material ground enabling the Court to give reasons either to grant or decline such relief. Except stating that the counsel has not put some questions relevant with regard to the execution of the promissory note and the signature thereon, there is no other justifiable ground enabling the Court to examine the necessity to recall a witness. 12. In this case, PW1 was already twice cross-examined. It is also brought to the notice of this Court that the petitioner has twice changed the counsel and now, the third counsel is conducting the case. As and when a counsel is changed, they may get a new idea to deal with the case in their own manner. That does not justify a party to ask for this type of relief. As such, with the kind of foundation laid in support of the relief sought in the present case, there is no justification for the petitioner to ask for recall of PW1. of course, the learned counsel for the respondent submitted that the questions that are likely to be put in the cross-examination of the witnesses to be recalled cannot be revealed in advance as that would alert the witness to be vigilant while giving answers. No doubt, it is a difficult situation to reveal the questions in advance since it is cross-examination of a witness. But, since the cross-examination was earlier twice conducted, unless there is justification for further cross-examination, that too, on the aspect which was already covered, it cannot be said that the petitioner has made out a good case for recalling PW1. As such, the petition to recall PW1 cannot be allowed in a routine manner and thus, the impugned order is liable to be set aside. 13. In the result, the Civil Revision Petition is allowed setting aside the order, dated 26.03.2021, passed in I.A. No. 173 of 2021 in O.S. No. 204 of 2015 on the file of the Court of III Additional District Judge, Tirupati, Chittoor District, and the said petition is dismissed. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.