Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 578 (HP)

Patel Engineering Limited v. Gian Prakash

2025-04-01

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. The present petition has been filed by the petitioners, seeking following substantive relief:- “(a) To quash and set aside the impugned order dated 9.8.2024 passed in Civil Suit No.110 of 2009 (now renumbered as Civil Suit No.1 of 2023) titled as Gian Prakash vs. Patel Engineering Limited by the Ld. Additional District Judge, Kullu, H.P. (Annexure P-4) in the interest of law and justice.” 2. I have heard learned counsel for the parties and perused the petition and the documents appended thereto. 3. In the case at hand, one Mr. Tanuj Jain, Senior Manager, M/s Patel Engineering Limited had appeared as PW-3 before the trial Court. During his examination, on 16.01.2024, the said Tanuj Jain had placed on record the Measurement Books of NHPC. In another suit, bearing Civil Suit No.249 of 2023 pending adjudication before learned Civil Judge (Senior Division), Kullu, District Kullu, one Rishi Sharma had appeared as PW-5. He had placed on record in the said civil suit, the Measurement Books which had been exhibited as Ex.PW5/B at the time when Tanuj Jain (16.01.2024) was examined as PW-3. The said Measurement Books which were placed on record as Ex.PW5/B in the other Civil Suit pending consideration before the Court of Civil Judge (Senior Division), Kullu were not on record in the case where from the present impugned order emanates. The certified copy of the same were brought on record by moving a separate application. It is in the aforesaid circumstances that the application under Order 18 Rule 17 of the Civil Procedure Code was filed for recalling and re-examining Shri Tanuj Jain (PW-3) as a witness. 4. Learned counsel appearing on behalf of the petitioners submits that the power under Order 18 Rule 17 of the Civil Procedure Code is a discretionary power to be used sparingly in appropriate cases to enable the Court to clarify any doubt with regard to the evidence led by the parties. The same cannot be used to fill up omissions in evidence of a witness who has already been examined. 5. Per contra, learned counsel appearing on behalf of the respondent has submitted that evidence sought to be produced would assist in clarifying the evidence led on the issues and would be required for a just and effective adjudication, in the case at hand. 6. 5. Per contra, learned counsel appearing on behalf of the respondent has submitted that evidence sought to be produced would assist in clarifying the evidence led on the issues and would be required for a just and effective adjudication, in the case at hand. 6. Order 18 Rule 17 of the Civil Procedure Code reads as follows:- “The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such question to him as the Court thinks fit.” 7. The scope and ambit of Order 18 Rule 17 of the Civil Procedure Code has been explained in Vadiraj Naggappa Vernekar through LRs. vs. Sharadchandra Prabhakar Gogate , 2009 (4) SCC 410 , wherein, it has been held as under:- “28. The power under the provisions of Order 18 Rule 17 CPC 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 CPC . 29. It is now well settled that the power to recall any witness under Order 18 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 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. 30. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re- examination-in- chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. 31. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC , but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. There is nothing to indicate that such is the situation in the present case. 31. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC , but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.” 8. In K.K. Velusamy vs. N. Palanisamy , 2011(11) SCC 275 it has been held as under:- “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 - 2009 (4) SCC 410 ]. 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 moto, 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.” 9. In this regard, it would also be appropriate to refer to Ram Rati vs. Mange Ram (dead) through Legal Representatives and others , 2016 (11) SCC 296 . The relevant paragraph is as under:- “18. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.” 9. In this regard, it would also be appropriate to refer to Ram Rati vs. Mange Ram (dead) through Legal Representatives and others , 2016 (11) SCC 296 . The relevant paragraph is as under:- “18. The settled legal position under Order 18 Rule 17 read with Section 151 CPC , being thus very clear, the impugned orders passed by the trial court as affirmed by the High Court to recall a witness at the instance of the respondent “for further elaboration on the left out points,” is wholly impermissible in law.” 10. From the aforesaid, it is evident that the power under Order 18 Rule 17 of the Civil Procedure Code is to be used sparingly. The same cannot be allowed on the ground that no prejudice would be caused to the parties. It can only be permitted to clarify doubts or clear any ambiguity. It cannot be used to fill up lacunae/omissions in the evidence already recorded. Under the garb of Order 18 Rule 17 of the Civil Procedure Code, no witness can be called for further examination- in-chief or to place additional evidence which could not be produced when the evidence was being recorded. 11. In the case at hand, Shri Tanuj Jain had appeared as a witness on 16.01.2024. He had appeared as PW-3. The photocopy of the Measurement Books which he had produced pertained to NHPC and not to the present petitioners. The Measurement Books with respect to which Tanuj Jain is sought to be recalled are stated to have been written by the said individual. The same had been placed on record after recording of the statement of Tanuj Jain. No valid, sufficient reasons have been mentioned in the application filed justifying non production of the documents earlier. 12. In the aforesaid circumstances, it is evident that recalling of the witness, in the case at hand, is for further examination-in-chief of Tanuj Jain and for placing on record evidence which could not be produced when the evidence of Tanuj Jain was being recorded, which is wholly impermissible in law. Order 18 Rule 17 of the Civil Procedure Code can only be used to clarify doubts/clear any ambiguity. Order 18 Rule 17 of the Civil Procedure Code can only be used to clarify doubts/clear any ambiguity. The aforesaid purpose is not the intent of the application filed under Order 18 Rule 17 of the Civil Procedure Code in the case at hand. 13. The present petition has been preferred under Article 227 of the Constitution of India . The scope of jurisdiction of High Court under Article 227 of the Constitution has been expounded by the Hon'ble Supreme Court as under: “(i) In Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003)3 SCC 524 , it has been held as under:- “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.” (iii) In Garment Craft vs. Prakash Chand Goel , (2022)4 SCC 181 , it has been held as under:- “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India . The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute conclusion, for its own that of decision the on facts inferior court and or tribunal. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute conclusion, for its own that of decision the on facts inferior court and or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v.Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 14. Thus, from the above stated exposition of law, it is clear that this Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India , except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. On the other hand in the supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. 15. On the aforesaid settled principles, a case for interference by this Court in its supervisory jurisdiction has been made out. Therefore, present petition is allowed. Accordingly, order dated 09.08.2024, passed by learned Additional District Judge, Kullu, District Kullu, Himachal Pradesh, in Civil Suit No.110 of 2009 (now renumbered as Civil Suit No.1 of 2023), titled Gian Prakash vs. Patel Engineering Limited, is quashed and set aside. 16. The parties are directed to appear before the Trial Court on 01.05.2025 17. In view of aforesaid, present petition stands disposed of, so also, pending miscellaneous application(s), if any.