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2025 DIGILAW 602 (HP)

Amar Nath v. Kanshi Ram

2025-04-03

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. 1. The present petition has been filed seeking the following relief:- “That the present petition may very kindly be allowed by setting aside the impugned order passed by the learned Civil Judge Barsar dated 30.09.2019 Annexure P-1 in the ends of justice.” 2. The respondent in the case at hand had filed a suit seeking permanent prohibitory injunction and mandatory injunction. The mandatory injunction claimed was with respect to any construction raised on the suit land during the pendency of the suit. Issues in the case at hand were framed on 17.02.2014. The relevant issue for the present controversy is issue No.2, the same is reproduced here-in-below for a ready reference:- 2. Whether the plaintiff is also entitled for the decree of mandatory injunction directing the defendant to demolish the construction and to restore the suit land to its original position in case defendant succeeds in raising any construction over the suit land during the pendency of the suit? OPP 3. Subsequent to the framing of the issues, evidence of the plaintiff was completed on 1.1.2015. On 20.04.2015, the case was listed for the evidence of the present petitioner/defendant. Thereafter on 19.08.2015, the present petitioner/defendant produced his witnesses and filed their evidence. After the filing of the aforesaid evidence by way of affidavits on behalf of the petitioner/defendant, an application under Order 6 Rule 17 CPC was filed. 4. By virtue of the said application, the respondent/plaintiff intended to amend the plaint in order to place on record subsequent developments qua illegal construction raised by the present petitioner/defendant during the pendency of the suit. The same was allowed vide order dated 22.07.2016 on account of the fact that the nature and character of the suit by virtue of the amendments being made was not being altered, all facts sought to be incorporated had come into existence during the pendency of the suit. Other than the aforesaid, the Court was of the view that in order to avoid multiplicity of litigation and to effectually adjudicate the controversy in the case at hand, the amendment as sought by the present respondent was necessary. 5. Subsequent to the allowing of the aforesaid amendment, written statement to the amended plaint was filed on 20.10.2016 and replication thereto was filed on 1.3.2017. 5. Subsequent to the allowing of the aforesaid amendment, written statement to the amended plaint was filed on 20.10.2016 and replication thereto was filed on 1.3.2017. On 24.5.2017 since issues had already been framed especially issue No.2, which has been reproduced hereinabove, no additional issues were required to be framed. Besides the aforesaid on 24.05.2017, PWs were ordered to summoned. Thereafter, the matter was listed on 18.9.2017, 15.1.2018, 6.6.2018 for recording the evidence of the plaintiff’s witnesses. Finally on 1.11.2018, two witnesses i.e. Manprit Sharma and Kanshi Ram had appeared in Court for recording of their evidence on behalf of the present respondent/plaintiff. 6. At this stage, the petitioner objected to recording of their evidence by stating that the evidence of the respondent/plaintiff had been closed on 1.1.2015. Qua the objection raised, an application had been filed by the petitioner/respondent on 28.11.2018. Order dated 30.09.2019 passed on the said application has been impugned by way of the present petition. 7. Heard counsel for the parties. 8. The first contention advanced on behalf of the learned counsel appearing on behalf of the petitioner is that no additional issues were farmed in the case at hand. From a perusal of the issues framed on 17.2.2014, especially issue No.2 framed therein, which has been reproduced hereinabove, it is evident that with respect to construction being raised during the pendency of the suit, an issue qua grant of mandatory injunction in favour of the present respondent/plaintiff for demolishing the construction so raised in order to restore the suit land to its original position has already been framed. Hence, the argument raised is without any force. 9. Insofar as the argument w.r.t. Order 18 Rule 17 CPC is concerned, it would be appropriate to refer to the same. 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.” 10. 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. 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. Reference in this regard can be made to 2009 (4) SCC 410 titled as Vadiraj Naggappa Vernekar through LRs vs. Sharadchandra Prabhakar Gogate, 2011 (11) SCC 275 titled as K.K. Velusamy vs. Palanisamy and 2016 (11) SCC 296 titled as Ram Rati vs. Mange Ram (dead) through Legal Representatives and others. 11. There exists no specific provision in the Code of Civil Procedure for reopening of the evidence. In this respect, resort can be had to Section 151 CPC. Exercise of such power cannot be done routinely, merely at the asking of one of the parties. The same can only be exercised (a) when it is found to be bona fide, (b) the evidence will assist in rendering justice (c) production at a later stage is justified for valid and sufficient reasons and the same should not be a protracting tactic. 12. In this respect, it would be appropriate to refer to case reported as (2011) 11 SCC 275 titled as K.K. Velusamy vs. Palanisamy. Relevant extract whereof reads as under:- “11. There is no specific provision in the Code enabling the parties to cross-examination. Section 151 of the Code provides that nothing in the Code b reopen the evidence for the purpose of further examination-in-chief or 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 b reopen the evidence for the purpose of further examination-in-chief or 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 c 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.” 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.” 13. The present petition has been filed under Article 227 of the Constitution of India. 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.” 13. The present petition has been filed under Article 227 of the Constitution of India. 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. In this respect, a reference can be made to (2003) 3 SCC 524 titled as Sadhana Lodh vs. National Insurance Co. Limited and another and (2022) 4 SCC 181 titled as Garment Craft vs. Prakash Chand Goel. 14. On the aforesaid settled principles, no case for interference by this Court in its supervisory jurisdiction has been made out. Therefore, present petition is dismissed. Pending miscellaneous applications, if any also stand disposed of. 15. Parties are directed to appear before the trial Court on 23 rd April, 2025. Record be sent back forthwith.