IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.12.2010 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN A.Nos.5471 & 5472 of 2010 in CS.No.632 of 1997 M/s. Pan Resorts Limited, Rep by its Director Sarath Kakamanu ... Applicant Vs. H.H. Karthika Pooyam Thirunal Gourj Parvathi Bayi And others ... Respondent Prayer: Applications filed under Order 14 Rule 8 and Order 17 Rule7 of Original Side Rules read with Order 18 Rule17 and Section 151 of Civil Procedure Code with a prayer to reopen the evidence of PW 1 and to recall and permit PW 1 to mark various sale deeds as specifically set out in para 27 and 29 of the proof affidavit of PW 1, the sale deeds pertaining to Plot No.7; the Board Resolution of the Plaintiff Company & Form No.32; the letter dated 28.07.2008 written by the sixth defendant to the Commissioner of Police with a copy marked to PW 1 and the e-mail dated 24.07.2008 sent by the fifth defendant to the applicant. For Appellant : Mr.Satish For Respondent : Mr.R. Rajarajan Mr.R. Meelakandan Mr.A.R. Karunakaran Common Order These two applications have been filed by the applicant after invoking the proviso to Order 14 Rule 8 and Order 17 Rule7 of Original Side Rules read with Order 18 Rule17 and Section 151 of Civil Procedure Code with a prayer to reopen the evidence of PW 1 and to recall and permit PW 1 to mark various sale deeds as specifically set out in para 27 and 29 of the proof affidavit of PW 1, the sale deeds pertaining to Plot No.7; the Board Resolution of the Plaintiff Company & Form No.32; the letter dated 28.07.2008 written by the sixth defendant to the Commissioner of Police with a copy marked to PW 1 and the e-mail dated 24.07.2008 sent by the fifth defendant to the applicant. 2. The suit in SC.No.632 of 1997 has been instituted on 07.07.1997 for the relief of specific performance of agreement of sale dated 03.08.1994. After inviting the written statements of the defendants, necessary issues and additional issues were formulated on 08.11.2005 and 03.09.2007 respectively. 3. It is obvious that the plaint was signed and verified by one K.Subbiah, who was the Director of the plaintiff company at the time of filing of this suit. Subsequent to his death on 29.12.2005 the applicant who is none other than the son of the said K.Subbiah was permitted to continue the suit on behalf of the plaintiff by the order of this Court dated 09.03.2010, as he being one of the Directors of the plaintiff company. 4. That on 09.03.2010, the applicant (PW1) by way of marking the commencement of trial had filed his proof affidavit. In para 27 of his proof affidavit, he has given a vivid account as to how the entire property located at No.1 LB road has been divided and sold under various sale deeds to various companies and entities who were controlled by the applicant and his father excepting a few small pieces of land as specified in paragraphs 28 and 29 of the proof affidavit. Besides this, the applicant has also stated in paragraphs 28 to 30 as to how certain small portions of the property were illegally sold by the royal family members to the third parties and also about the pendency of three suits in C.S.No.158 to 160 of 2006 on the file of this Court. Under the above circumstance, the applicant has come forward with these two applications to reopen his evidence (evidence of PW 1) and also to recall and permit him to mark; (a)the various sale deeds as specifically set out in paragraphs 27 and 29 of his proof affidavit. (b)the sale deeds pertaining to Plot No.7. (c)the Board Resolution of the plaintiff's company. (d)letter dated 28.07.2008 written by the 6th defendant to the Commissioner of Police with a copy marked to the applicant. (e)e-mail dated 24.07.2008 sent by the 5th defendant to the applicant (PW 1). 5. Before we go into the merits of the case it may be better to have the assistance of the proviso to Order 18 Rule 17 of Civil Procedure Code. Order 18 Rule 17 CPC "Court may recall and examine witness:- 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." 6. From the language coined in Rule 17 to Order 18 an inference can be drawn that; "Power to recall any witness 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 not to be invoked 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. 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." 7. This principle is laid down by the Hon'ble Supreme Court in Vadiraj Naggappa Vernekar (D) through Lrs. vs. Sharad Chand Prabhakar Gogate reported in (2009) 4 MLJ 288 (SC). 8. The learned counsel appearing for the applicant has based his arguments on the following grounds; 1.DW1 during the course of his cross-examination has admitted that all the sale deeds enlisted in paragraph No.27 of the proof affidavit of the applicant (PW1) relating to Plot No.3,4,5 and 1 were executed by his father for and on behalf of the defendants 1 to 9 in the suit. However, during the course of argument the learned counsel appearing for the defendants had adverted to that those sale deeds did not have any reference to show that the entire property was divided and then sold and that the entire property at No.1 LB Road was undivided. 2.Initially the applicant did not produce the sale deeds as detailed in paragraph No.27 of his proof affidavit as he was under the impression that the execution of those sale deeds was admitted by the defendants and not disputed. DW1 had also corroborated this fact in his cross-examination. Since the learned counsel appearing for the defendant during the course of his arguments had sought to portray a different picture, it has now become necessary for the applicant to produce the certified copies of the sale deeds specified in Paragraph 27 of the proof affidavit to avoid any technical defects. 3.It is the specific case of the plaintiff that the entire area of the property at No.1 LB Road measuring 4.06 acres, which was divided into 7 plots, of which the applicant (PW 1) and his father decided to acquire six plots measuring 3.89 acres through their closely held companies, and one trust and that Plot No.7 was sold to a third party. But during the course of argument the defendants had sought to make out a case that Plot No.7, had not been sold and is still with the defendants, in spite of DW1's specific statement that he had not checked as to what were the portions retained by the defendants as per Ex.P5 sketch. Under these circumstances it has become necessary for the applicant to produce necessary certified copies of the sale deed showing conveyance of Plot No.7 in favour of a third party. 4.During the course of argument, the learned counsel for the defendant's raised a technical plea saying that the suit itself was not maintainable since, Mr.K.Subbiah who was one of the Directors who signed and verified the pleadings, was not authorised by a Board of Resolution to file the suit. Yet another technical plea was raised by the learned counsel for the defendants that the applicant was also incompetent to continue the suit and also to give evidence on behalf of the plaintiff, since there was no Board Resolution authorising him to do so. 5.Both the applicant and his father had personally involved in the transaction for purchase of a major part of the property forming part of the property at No.1 LB Road through registered sale deeds as stated in para 27 of the proof affidavit of the applicant (PW1) and all these transactions were effected even before entering into the suit sale agreement. Both the applicant and his father were/are having personal knowledge of all the facts that have transpired for purchase of various property at No.1, LB Road and the applicant is also personally aware of the circumstances under which the plaintiff company then entered into the agreement. The fourth defendant has also admitted in his written statement that the applicant family members had acquired the entire share of the plaintiff company in 1995. When such being the case various technical pleas are now being raised to defeat the plaintiff's company's legitimate rights. 6.The board of the plaintiff's company comprising the applicant, his wife Sheela and one K.Srinivansan as its Directors, has now passed a resolution ratifying the act of K.Subbiah in filing the suit in the year 1997; ratifying the applicant pursuing the suit after the death of his father Subbiah on 29.12.2005; ratifying the applicant giving evidence as PW 1, in the present suit and also authorising him to continue with the suit and do all such things which are necessary to carry the suit to its logical end. Hence, it has become necessary for the applicant to produce the said board resolution. 7.During the course of argument advanced by the learned counsel for the defendant, it was maintained that the plaintiff is not in possession of any portions of the suit property. In order to disprove this factum, the plaintiff was in possession of one letter dated 28.07.2008, written by the sixth defendant to the Commissioner of Police with a copy marked to the plaintiff that Plot Nos.3, 4, 5 and 1 have already been sold to various companies of pioneer group and he is in occupation of the Palace in Plot No.2, eventhough he had sold his share to the plaintiff and that his possession is not being disturbed. This letter was necessitated due to a false police complaint given by the defendants 1 to 8 and 7 to 9, that the plaintiff was seeking to disturb their possession in respect of the suit property. 8.Even before issuance of this letter, the 5th defendant had sent an e-mail dated 14.07.2008 to the applicant (PW 1) confirming that 2 out of 9 shares of the suit property have been sold to the plaintiff and possession was handed over to the plaintiff to the extent of the said shares and that the defendants 5 and 6 had sold their shares by means of registered sale deeds and that the stay of the sixth defendant in the suit property is restricted only to the share which is remained unsold. Therefore, the letter dated 28.07.2008 written by the 6th defendant and the e-mail dated 14.07.2010 sent by the 5th defendant are very much essential to be produced as documentary evidences. This letter and e-mail were able to be traced out only now. 9. The learned counsel for the applicant has also added that the above mentioned documents do not introduce any new cause of action, but the documents are only in furtherance of the plaintiff's case as stated in the plaint as well as in the proof affidavit and no hardship will be caused to the defendants if the evidence of PW1 is reopened and all these documents are allowed to be marked at this stage. He has also maintained that the above mentioned document as mentioned in paragraph 27 of the proof affidavit of the applicant are already on record before this Court in C.S.No.158 to 160 of 2006 and are admitted as documentary evidence. 10. During the course of his argument, the learned counsel has also laid emphasis on Order 17 Rule 6 and 7 of Madras High Court Original Side Rules. Rule 7 reads as follows; "Notwithstanding anything contained in Rule 6, the Court may for sufficient reason direct any party to examine any witness in any stage of the suit." 11. In this connection he would submit that since the applicant has shown adequate reasons, he might be permitted to reopen his evidence so as to enable him to mark the documents specified in the opening paragraphs. He has also made stress upon Order 7 Rule 14 of Civil Procedure Code. It may be relevant to refer the proviso to Rule 14 to Order 7 of Civil Procedure Code. "Production of document on which plaintiff sues or relies  (1)Where a plaintiff sues upon a document or relies upon a document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall wherever possible, state in whose possession or power it is. (3)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." 12. And besides this the learned counsel while advancing his arguments has also made reference to the proviso to Order 18 Rule 17. 13. In order to substantiate his argument, he has also placed reliance upon the decision in Sultan Saleh Bin Omer v. Vijayachand Sirimal reported in AIR 1966 ANDHRA PRADESH 295 (Vol.53, C.95)(1). In this case the Learned Single Judge of Andra Pradesh High Court has made reference to Order 18 Rule 17 of CPC. With regard to Rule 17 he has observed that; "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 be 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. It cannot, therefore, be said that an opportunity to a party to re-call any witness for the purpose of examining, cross- examination or re-examining is governed by Order18, Rule 17 C.P.C." It is also held further 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." 14. The learned counsel has also placed reliance upon another decision in Suresh Kumar v. Baldev Raj reported in AIR 1984 Delhi 439. In this case the scope and application of Order 18 Rule 17 have been explained by a Learned Single Judge of Delhi High Court. It is held that; "The term 'at any stage' as envisaged under Rule 17 means that, at any stage before judgment is pronounced. The stage of the case alone should not weigh with Court to such an extent as to overshadow other aspects of matter." In paragraph No.3 of the judgment it is observed that; "After the closing of evidence by both the parties, the matter came up for hearing of arguments before the trial Court. Wisdom then dawned upon the petitioner that he had not filed the original documents and the photostat copies filed by him were not admissible as secondary evidence. So, realising this lapse on his part he moved the aforesaid application for recalling AW 2, to prove the documents marked A, B and C and also to supply photostat copies of the documents which were to be exhibited as RW 1 and RW 2." At paragraph No.6 of the judgment it is observed that; "On a plain reading of this provision it is obvious that discretion vests in the Court to recall a witness who has been examined earlier at any stage of the suit which would evidently mean any stage before the judgment is pronounced. So the discretion vesting in the Court under this Rule can be exercised even after evidence of the parties has concluded, of course, it must be exercised judicially and on well accepted judicial principles and not arbitrarily or capriciously." 15. The learned counsel for the applicant has also made reference to Order 6 Rule 14 of CPC and submitted that where the party pleading is by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf. 16. He has also submitted that the plaintiff's company, comprising the applicant, his wife Sheela and one K.Srinivasan as Director has now passed a resolution ratifying the act of K.Subbiah of filing the suit in the year 1997; ratifying the applicant pursuing the suit after the death of applicants father Subbiah on 29.12.2005. Hence, he would submit that the production of the resolution passed by the board through PW 1 will not in any way cause prejudice to the respondents/defendants. 17. With regard to the subscription and verification of pleadings in a suit by or against corporations, the learned counsel for the applicant has also made reference to Order 29 of the Code of Civil Procedure. In Order 29 Rule 1, it is envisaged that; "In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case." 18. In order to fortify his arguments he has also placed reliance upon the decision in United Bank of India v. Naresh Kumar and others reported in (1996) 6 SCC 660. In this case at paragraph No.9 at page No.663 it is held that; "where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable." At paragraph No.10, it is held that; "It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure." 19. The learned counsel has also submitted that even though certain important documents were omitted to have been tagged with the plaint at the time of its presentation and were also omitted to be included in the list that has been annexed with the plaint, in the later stage, those documents could be tendered as evidence with the leave of the Court, exercising its jurisdiction under Order 7 Rule 14(3) of CPC. In order to substantiate his argument, the learned counsel has also placed reliance upon the decision in Kejriwal Enterprises v. General Manager, Ordinance Factory and others reported in AIR 2004 Calcutta 225. In this decision the Learned Single Judge of Calcutta High Court has observed that; "Upon reasonable construction of the provisions of Order 7, Rule 14, Sub-Rule (3) as amended by Amendment Act 22 of 2002 and amending Act 46 of 1999 whereby the provisions of Rule 17-A of Order 18 has been omitted from the Code, this Court is of the view that, the documents, which have not been presented along with the plaint and also have not been entered in the list that has been added or annexed to the plaint as per the provisions of Order 7, Rule 14 Sub-Rule (1) of the Code could still be tendered in evidence with the leave of the Court which the Court may grant in exercise of jurisdiction under sub-rule (3) of Rule 14 of Order 7 of the Code as amended by Amendment Act 22 of 2002." 20. At the conclusion of his argument, the learned counsel for the applicant has also maintained that the documents which have been spoken to by PW 1 (applicant herein) in his proof affidavit at paragraph No.27 are already on record in the suits in C.S.No.158 to 160 of 2006 which are pending trial before this Court and since, those documents have been admitted to evidence, they might be called for, so as to enable the applicant to produce them before this Court. In order to add an additional strength to the case of the applicant. In this connection he has also made emphasis on the proviso to Order 13 Rule 10 of CPC. Order 13 Rule 10 CPC Sup Rule (1)  Court may send for papers from its own records or from other Courts  "The Court may or its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any suit or proceeding, and inspect the same." 21. On the other hand the learned counsel appearing for the 7th and 8th respondents has vehemently objected the claim of the applicant and at the first instance, he would submit that since the applications have been filed by the applicant based on his proof affidavit, that too only on the basis of paragraph No.27 of his proof affidavit, instead of forming base over the pleading of the plaint they are not maintainable and are liable to be rejected at once. 22. The learned counsel has also submitted that no specific averments have been made in the plaint with regard to paragraph No.27 of the proof affidavit of the applicant (PW1). Under these circumstances, the applicant cannot