*THE HON'BLE SRI JUSTICE P.S.NARAYANA +C.R.P.Nos.1393, 1408 and 1409 of 2007 % 18-6-2010 # Karnapu Satyanarayana s/o.late Appanna .. Petitioner and $ Chappa Venkata Rao s/o.Ch.Ramudu .. Respondent <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri P.Durga Prasad ^ Counsel for respondent : ? CASES REFERRED : 1. 2002(6) ALT 265 2. AIR 2004 P&H 377 3. 2002(1) ALT 46 (S.C.) 4. AIR 1965 S.C. 1008 5. AIR 1974 Kar. 123 6. AIR 1966 A.P. 295 7. AIR 1999 Raj. 108 8. 1997(2) ALD 222 9. 2002(6) ALT 265 10. AIR 1999 H.P. 72 11. AIR 1998 Mad. 323 12. 1996(2) ALT 979 13. 2009(5) Bom.C.R. 460 (S.C.) 14. 2010(2) Bom.C.R. 824 15. 2008(4) Bom.C.R. 895 THE HON'BLE SRI JUSTICE P.S.NARAYANA C.R.P.Nos.1393, 1408 and 1409 of 2007 Dt.18-6-2010 Between : Karnapu Satyanarayana s/o.late Appanna .. Petitioner and Chappa Venkata Rao s/o.Ch.Ramudu .. Respondent THE HON'BLE SRI JUSTICE P.S.NARAYANA C.R.P.Nos.1393, 1408 and 1409 of 2007 COMMON ORDER: 1. These Civil Revision Petitions are being disposed of by a Common Order since the learned Junior Civil Judge, Kothavalasa also disposed of I.A.Nos.34, 35 and 45 of 2007 in O.S.No.104/2004 by a common order. 2. The petitioner/plaintiff having been unsuccessful before the learned Junior Civil Judge, Kothavalasa, in view of the fact that the said applications aforesaid for reopening of the suit, recalling of the witness and reception of documents having been negatived, preferred these Civil Revision Petitions before this Court under Article 227 of the Constitution of India. 3. The respondent/defendant had been served and none represents the respondent/defendant in these Civil Revision Petitions. 4. Sri Durga Prasad, the learned Counsel representing the petitioner in all these Civil Revision Petitions had taken this Court through the specific grounds raised and would maintain that the order under challenge is opposed to the very spirit and object of the provisions of Order XVIII Rule 17 of the Code of Civil procedure (hereinafter in short referred to as “Code” for the purpose of convenience). The learned Counsel also would point out that the learned Judge ought to have appreciated that at the time of cross- examination of D.W.1, D.W.1 stated that the schedule property does not belong to him at all and it was gifted away and the document now produced would clearly goes to show that the property was gifted on 4- 3-2003 in favour of his wife and children. The Counsel also would maintain that to establish the said fact, immediately a certified copy of the gift deed had been obtained and these applications had been filed. The learned Judge, without appreciating the respective stands taken by the parties, in stead of giving opportunity to the petitioner/plaintiff erroneously dismissed these applications and hence these Civil Revision Petitions to be allowed. 5. Heard the Counsel representing the Revision petitioner in all these Civil Revision Petitions, perused the contents of the respective affidavits filed in support of these applications and the stand taken in the counter affidavit as well and the common order made by the learned Junior Civil Judge, Kothavalasa in I.A.Nos.34, 35 and 45 of 2007 in O.S.No.104/2004. 6. The respective pleadings of the parties also had been placed before this Court. I.A.No.34/2007 was filed to reopen the suit, I.A.No.35/2007 was filed to recall P.W.1 for the purpose of marking document and I.A.No.45/2007 was filed for reception of document. As already aforesaid, by a common order, the learned Judge after recording reasons dismissed the said applications. 7. It is the case of the petitioner/plaintiff that on 23-8-2006, the learned Judge recorded the cross-examination of D.W.1 and in the cross-examination D.W.1/defendant had deposed that the plaint schedule property is not his property and further this witness deposed that he does not have any such property in the village. It is also the case of the petitioner/plaintiff that actually the defendant executed a gift deed in favour of his wife and in that gift deed the defendant also mentioned about the house property and hence to prove the same it is essential to mark the said document and it is also essential to place a copy of the said document before the court and for the purpose of marking the said document, it would be just and necessary to recall P.W.1 as well. 8. In the counter filed it is stated that these applications had been thought of at a belated stage and the evidence of both the sides having been completed, the matter was coming up for arguments and at that stage only with a view to delay the proceedings further, these applications had been thought of. Further it is stated that the defendant and his wife are not living together and the children of the defendant also are living with the wife of the defendant and as such the defendant is in no way concerned with the wife and children and the said gift deed in controversy is irrelevant to the facts of the case. Certain further facts also had been narrated in the respective counters filed in these applications. 9. The learned Judge, in the common order, formulated the Point for consideration at para-4 whether all these applications are maintainable ? The learned Judge recorded reasons at paras 5, 6, 7, 8 and 9, referred to T.Ramachandra vs. K.Rama Murthy and others [1], Surinder Kaur Vs. Karanbir Singh [2] and Madanlal Vs. Shyamlal [3] and ultimately came to the conclusion that these applications for reopening, recalling and receiving the document after closure of the evidence of both the sides and when the matter is coming up for arguments, cannot be maintained and accordingly dismissed the applications with costs. 10. Order XVIII Rule 17 of the Code dealing with Court may recall and examine witness reads: “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 questions to him as the Court thinks fit”. It is needless to say that the power conferred under Order XVIII Rule 17 of the Code to recall a witness is discretionary. I n Municipal Corporation of Greater Bombay Vs. Lala Pancham [4] the Apex Court at para-15 observed : “There are certain limits which the law places upon the powers of the Court in dealing with a case before it. Just as it is not open to a Court to compel a party to make a particular kind of pleading or to amend his pleading so also it is beyond its competence to virtually oblige a party to examine any particular witness. While, therefore, it is the duty of a Court of law not only to do justice but to ensure that justice is done it should bear in mind that it must act only according to law, not otherwise.” 11. In Shankara Bhat Vs. Bheema Bhat [5] the learned Judge of Karnataka High Court while following the decision in observed : “The right to put questions to the witness recalled under Rule 17 is given only to the Court and even cross-examination is not ordinarily permitted on the answers given to such questions, without the leave of the Court. Under that rule therefore, a witness cannot be recalled at the instance of a party for the purpose of examining, cross-examining, or re-examining and that rule is not intended to serve such purpose. Therefore, an opportunity to a party to recall a witness for the purpose of examining, cross-examining or re-examining is not governed by Rule 17”. 12. In Sultan Saleh Bin Omer Vs Vijayachand Sirimal [6] the learned Judge of this Court at paras 5 and 20 observed : “Sri Suryaprakasam, the learned counsel for the 1st defendant-petitioner, contended that the order reopening the suit and giving an opportunity to the plaintiff to cross-examine D. W. 1 and lead rebuttal evidence is- an erroneous, and illegal exercise of jurisdiction, and that the circumstances of the case also did not warrant it. He also contended that in view of Order 18, Rule 17 C. P. C. , Section 151 C. P. C. could not be invoked. The argument of the learned counsel was that Order 18 Rule 17 provides for a situation like the present one, and Section 151 cannot be invoked. To my mind, this argument cannot be accepted. Order 18, Rule 17 is in the following terms: "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 questions to him as the Court thinks fit. " A close reading of this Rule makes it obvious that the right under that Rule to put questions at any stage of a suit, or recall any witness for that purpose, is given to the Court. The Court can put questions to the witness re-called, and no cross- examination is ordinarily allowed upon the answers to the questions put by the Judge without leave. The right to act under this Rule is not restricted to the Court on its own motion, but may be exercised at the instance of a party. Ii cannot, therefore, be said that an opportunity to a party to re-call any witness for the purpose of examining, cross-examining or re- examining is governed by Order 18, Rule 17 C. P. C. I, therefore, hold that if circumstances warrant, an opportunity to a party to re-call a witness for examining, cross-examining or re-examining can be granted by a Court in the exercise of its inherent jurisdiction under section 151 C. P. C. ….. ….. Then arises the question, whether the circumstances warranted an opportunity being given to the plaintiff to cross- examine D. W. 1. On the affidavits filed before him, the learned Assistant Judge was satisfied that the plaintiffs counsel were unable to be present for reasons beyond their control. I agree with him, and bold that in the circumstances, the opportunity was rightly given to the plaintiff to cross-examine D. W. 1. As already stated, the City Civil Judge did not giant an opportunity to the defendants to adduce further evidence which they wanted. Since, any way, D. W. 1 is being cross-examined, and witnesses will be examined on behalf of the plaintiff, I think it just that an opportunity ought to be given to both parties to adduce any further evidence as they may think necessary, without asking for necessary adjournments for that purpose.” 13. In Prahlad Das Vs. Karunaram [7] the learned Judge at paras 6, 7 and 8 observed : “So far as question of recalling of witnesses is concerned, it is the discretion of the Court given to it under Order 18, Rule 17, C. P. C. which provides that 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 questions to him as the Court thinks fit. The word used "may" indicates that the discretion has been given to the trial Court. The word "may" used does not mean "shall" and the Court was not bound to recall the witnesses whom the petitioner wanted to recall. The case of the petitioner himself is that he had engaged a counsel sometime in the year 1991 but he did not appear and ultimately on 31-7-93 the defence of the petitioner was closed. There is nothing on record as to when did the petitioner contact his advocate in between 29-4-91 to August, 1995. It is found from the record that when Karunaram and his two witnesses were examined by the learned District Judge, proper opportunities were given to the opposite parties who were present to cross-examine the witnesses. But when the petitioner or his counsel were not present they did not and could not have cross-examined these witnesses. It was submitted that a formal order of ex parte proceedings was not passed against the petitioner. In my view it hardly matters. Now to say that petitioner may be given opportunity to cross- examine the witnesses after recalling them will amount injustice to other party. The law helps those who do not sleep. The petitioner has been sleeping over the matter for the reasons best know to him. Learned counsel for the petitioner cited 1993 (2) RLW 578, Shyam Das v. Praveen Kumar, in which the appeal remaining pending in due course for 9 years and there was no negligence on the part of the applicant. It was observed that the applicant should not suffer on account of inaction or negligence on the part of his counsel and the restoration application was allowed. The facts of the cited case are different and it is not a case of restoration of appeal or a suit but recalling of the witnesses which is a discretion of the learned trial Judge. He also cited AIR 1981 SC 1400 : (1981 All LJ 704), Rafiq v. Munshilal, in which appeal was dismissed for default of the appellant's counsel and it was observed that the party should not suffer for misdemeanour or inaction of his counsel. This citation also does not help the petitioner as the present one is not a case of dismissal of an appeal or a suit instead the petitioner wants that the witnesses of Karunaram and Karunaram himself be resummoned for cross- examination. Learned counsel for the respondents cited AIR 1954 Nagpur 252, Dwarkabai v. Ukharda Ganpat, in which Section 137 of the Indian Evidence Act was considered. Practice of pleader or party being absent was considered and it was held that the Court is not bound to wait for any length of time and thus waste public time if the pleaders do not turn up in Court at the right moment to cross-examine the opposite party's witnesses. This appears to be the correct interpretation of Section 137 of Indian Evidence Act and when the petitioner missed the bus for reasons best known to him he cannot be allowed now to recall the witnesses and Karunaram for cross- examination. I am of a very clear view in this case that the learned District Judge has correctly exercised his jurisdiction by disallowing the application. He has not committed any illegality or error of jurisdiction. 14. In Brahmam P Vs. G.Swaminaidu [8] the learned Judge of this Court at para-4 observed : “It is to be seen, Courts are entitled to recall a witness who has already been examined, at any stage of the suit, for putting certain questions under the above provision. The words used in this provision are to be necessarily construed to say the power can be exercised by the Court suo motu as also at the instance of either party. The legislature never intended to say the Courts alone are to exercise suo motu powers to recall a witness at any stage of the proceedings. No doubt, this is a suo motu power vested in the Courts under the Civil Procedure Code for exercising such power in an appropriate situation, however, this power has to be construed to say that the Court on its own or at the instance of either party permit recalling of a witness in a given set of circumstances. It all depends upon the set of circumstances and the Court shall prima facie satisfy as to the ordering of recalling of a witness who has already been examined. If once the Court is satisfied, it is open to the Court to act upon such an application also when filed before it seeking recalling of a witness by either party.” 15. In the decision referred (2) supra the learned Judge of Punjab and Haryana High Court at para 12 observed : “From the perusal of the aforesaid provision, it is apparent that it is only the requirement of the Court that it may, at any stage of the suit, recall any witness who had been examined earlier and put to him such questions as it may deem fit. The said provision does not permit a party to re-examine any witness to fill the lacuna in the case. Such a provision is merely an enabling provision for the convenience of the Court.” 16. In D. Dhanalaxmi vs. Sannadhi Prabha Krishna alias Prabhavathi [9] the learned Judge of this Court at para-10 observed: “In so far as the case of the petitioner (6th defendant) is concerned, admittedly she was examined as witness and she also examined as many as five witnesses. It is her case that she is the bona fide purchaser of the property in question from the 1st defendant and therefore having regard to the issues framed she has to prove the sale deed ex. B-2 executed by 2nd respondent (1st defendant) in her favour. I am afraid i cannot agree with the submission made by the learned counsel for the revision petitioner that the petitioner would be prejudiced if she is not allowed to prove the registered sale deed which is marked as ex. B-2. He apprehends that without proper proof the sale deed executed by plaintiff in favour of the 1st defendant is sham and nominal document. This submission has no merits as the petitioner has already examined as many as five witnesses on her behalf. Further, as rightly observed by the trial Court the title of the vendor of the petitioner i.e., title of the 1st defendant is itself in question, the petitioner being a subsequent purchaser has to either sink or sail with the 1st defendant. Furthermore when the application of the 1st defendant to examine herself to adduce evidence itself is dismissed, the petitioner now cannot be permitted to adduce further evidence by reopening the suit at this stage.” 17. The ground or purpose for which the applications to reopen the suit and to recall P.W.1 had been thought of is for the purpose of marking the document - the certified copy of the gift deed dated 4-3- 2003. The suit was instituted in the year 2004 and this document, a registered document, is prior to the very institution of the suit. 18. Order VII Rule 14 of the Code dealing with Production of document on which plaintiff sues or relies.. Order XIII Rule 1 dealing with Original documents to be produced at or before the settlement of Issues, reads : “The parties or their pleader shall produce on or before the settlement of issues all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.” 19. Order13 Rule 3 deals with Rejection of irrelevant or inadmissible documents. Order VII Rule 14(3) states that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. 20. It is true that the Court is having a wider discretion to allow the production of documents at a later stage depending upon the facts and circumstances of a particular given case. The genuine documents and relevant documents for the purpose of deciding the question in controversy in a particular suit or proceeding may be permitted to be produced. But however when there is cross and unexplained delay in producing such documents, the Court may not be inclined to exercise such discretion in favour of such a party. In the decision referred (3) supra the Apex Court observed at para-5 : “The cause shown by the appellant was not considered to be a "good cause" as provided under Order 13, Rule 2, CPC. It is true that power under Order 13, Rule 2 CPC could be exercised liberally and that "good cause" requires lesser degree of proof than that of "sufficient cause". May be that order is erroneous, however, it cannot be said that such order passed by the trial Court could be interfered under Section 115 of CPC. It cannot be said that the trial Court has acted with material irregularity in exercise of its jurisdiction in rejecting the applications filed by the appellant and that the order, if allowed, would occasion a failure of justice. The words "material irregularity in exercise of jurisdiction" do not cover either errors of fact or law. It is open to the appellant to raise this contention at the appellate stage, if decree is passed against him.” 21. Reliance also had been placed on Satinder Singh Vs. Sukhdev [10] where the learned Judge of Himachal Pradesh High Court at para-8 observed : “Judging the claims of the respective parties in this case in the light of the principles noticed above and specific provisions in O. 18, Rr. 17 and 17-A. I am of the view that the Court below has misdirected itself in rejecting the application and denying the petitioner of an opportunity to recall and examine the plaintiff examined earlier as PW-4 with reference to a particular document, to which the plaintiff was said to have been party by signing and issuing the same. It is by now well settled and often reiterated that the procedural law should be a guide as also handmade to render substantial justice. Unless the law itself provides some serious consequences, on account of any lapse committed, the endeavour of the Court should also be to ensure that all relevant and the best materials are allowed to be brought on record, which could effectively, conclusively and finally adjudicate the dispute between the parties. The power of the Court under O. 18, Rr. 17 and 17-A to do so and to direct recalling the re-examining of a witness, who has been examined earlier, to put any questions as the Court may deem fit or to produce evidence not previously known and could not be produced, despite due diligence, cannot be seriously disputed. The question is as to whether in a given case or for that reason in the present case, the request of the petitioner before the Court below is in order and in accordance with law and could have been rejected and refused to be allowed, in the manner it has been done by the Court below. In my view, the Court below in rejecting the request and denying the opportunity to the petitioner-defendant has committed not only a grave error but has chosen to stall a relevant piece of material in evidence being brought on record, which would help the Court itself to effectively decide the issue. The case of the plaintiff is that he is the owner of the property. The defendant in the written statement has categorically stated that the predecessor-in-interest through whom the plaintiff claims was never inducted as a tenant in the suit land and that he was a Chowkidar and the defendant alone is the owner and that he has been cultivating the same by hiring labour. The receipt alleged to have been passed on by the plaintiff himself could not be said to be an extraneous or irregular material in deciding the relationship of the parties and right with reference to the property in dispute and on the other hand it will be one of the relevant piece of evidence necessary also for deciding the question as to whether the plaintiff is really owner in occupation or possession of the property, as claimed by him. Consequently, the order of the Court below cannot be sustained. The reason assigned by the Court below that no such plea has ever been made is to take a too technical view of the matter as also the manner of appreciation of the matter since, as noticed earlier, the party to a proceeding, is not obliged to disclose the entire evidence also in the pleadings before he should be allowed to prove them in evidence. If the defendant is