r201612 S.C.R. 9

RAM RAT!

MANGE RAM (D) THROUGH LRS. AND ORS.

(Civil Appeal No. 1684of2016)

FEBRUARY 23, 2016

[KURIAN JOSEPH AND ROHINTON FALi NARIMAN, JJ.]

Code of Civil Procedure, 1908- Order 18 r. 17-Application under - Scope of - Po11'er of the court u/r 17 is though discretionary, has to be used sparingly - The po11'er cannot he invoked to fill up the omission in the evidence already led by a 1Pitness, or for the purpose of filling up a lacuna in the evidence - 'No prejudice is caused to either party' also cannot be a ground to be invoked u/1: J 7 - ff the court invokes the poll'er u/r. J 7, it has to see that trial is not unnecessarily protracted on that ground - However, the rigour of r. 17 does not affect the inherem powers of the court - Jn the present case, the application ulr. 17 for fi1rther elaboration 011 the left out points is impermissible in law.

Allowing the appeal, the Court

HELD: 1. The basic purpose of Ruic 17 of Order 18 C.P.C. is to enable the court to clarify any position or doubt, and the court may, either .rno 1110/11 or on the request of any party, recall any witness at any stage in that regard. This power can he exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. 'No prejudice is caused to either party' is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground. (Para 11] (14-A-C]

2. The rigour under Rule 17, however, does not affect the inherent powers of the court to pass the required orders for ends of justice to reopen the evidence for the purpose of further examination or cross-examination or even for production of fresh evidence. This power can also be exercised at any stage of the suit, even after closure of evidence. Thus, the inherent power is the only recou.rse. [Para 14] [15-G]

3. Thus, in view of the legal position under Order 18 Rule 17 read with Section 151 of the CPC, 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. [Para 18)

[18-D]

Vadiraj Naggappa Vernekar (Dead) Through Lrs. v.

Sharadchandra Prabhakar Gogate (2009) 4 SCC 410: 2009 (2) SCR 1071; K.K. Ve/usamy v. N. Pa/anisamy

(2011) 11 SCC 275:2011 (4) SCR 31; Bagai Cans/ruction Through its Proprietor La/it Bagai v.

Gupta Building Material store (2013) 14 SCC 1: 2013

(2) SCR 116 - relied on.

Case Law Reference

E 2909 (2) SCR 1071

2011 (4) SCR 31

2013 (2) SCR 116

relied on. relied on. relied on.

Para 12 Para 13 Para 17

CIVIL APPELLATE JURISDICTION : of2016 Civil Appeal No. 1684

From the Judgment and Order dated 09.04.2013 in Civil Miscellaneous (Main) No. 507 of 2011 passed by the High Court of Delhi at New Delhi.

Pritesh Kapur, Om Prakash, A. Abhinav, (For Vivek Narayan Sharma), Advs. for the Appellant.

Praveen Jain, Sidharth Jain, Ajay Kumar Jain, Advs. for the Respondents.

The Judgment of the Court was delivered by

KURIAN, J.: I. Leave granted.

2. Whether a witness can be recalled under Order 18 Rule 17 of A The Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') for further elaboration of aspects left out in evidence already closed, is the issue for consideration in this case.

3. There are two suits filed by the respective parties and pending before the Tis Hazari Courts at Delhi. Civil Suit No. 43 of2009 was filed B by the respondents herein for declaration and injunction in respect of the plaint schedule property. In respect of very same property, the appellant herein also filed a suit seeking permanent injunction and that suit has been numbered as Civil Suit No. 44 of2009. The suits were consolidated for common trial, on joint request, by order dated 08.12.2007. Suit No. c 43 of2009, with the consent of the parties, was ordered to be tried in the court where Suit No. 44 of2009 was pending by order dated 26.09.2005 of the District Judge, Delhi. Much before that, evidence in Civil Suit No. 44 of 2009 had commenced and the appellant herein had been examined as PW-I and the respondents herein had cross-examined PW-

1 as well. That evidence was closed on 16.04.2005. After the consolidation D of the two suits, the respondents herein filed an application on 13.04.2010.

We shall extract the averments made in the said application as under:

"APPLICATION ON BEHALF OF DEFENDANT FOR

DISCHARGING THE STATEMENT OF PW- I AND

EXAMINATION OF WITNESS I.E. PW-I AFRESH UNDER

ORDER 18 RULE 17 C.P.C. READ WITH SECTION 151 C.P.C.

Sir,

The applicant most respectfully submits as under:-

1. That the plaintiff examined PW- I. Sh. Chottu Ram as PWIon

6.12.2004. His cross examination was concluded on 16.4.2005.

2. That this Hon'ble Court consolidated the present suit with another suit titled as Mange Ram Vs. Chander Kanta etc. vide its order dated 8.12.2007.

3. That while passing the order ofconsolidation dated 8 .12 .2007, this Hon'ble Court ordered as under:-

"It has been so urged on behalf of both contesting sides that trial in two cases be conducted commonly and evidence Jed in either case be read in both these cases."

4. The directions or observations of this Hon'ble Court as reproduced above operates prospectively and not retrospectively.

5. That when the Hon'ble Court ordered that evidence in one case may be read in evidence in another case, then plaintiff in Mange Ram Vs. Chander Kanta & Ors. would be deprived of the oppo1tunity of cross examination of PW- I which was concluded on 16.4.2005. much prior to the date of order of consolidation.

6. That as per settled position of law on this point and as per terms of order of this Hon 'ble Court dated 08. 12.2007, either the PW-I be examined afresh or opportunity to cross examine the PW-I may be granted to the applicant/plaintiff in Mange Ram Vs. Chander Kanta & Ors.

It is, therefore, prayed that PW-I may kindly be examined afresh or opportunity to cross examine the PW-I in Ram Rati Vs. Mange Ram etc. may kindly be granted to the applicant."

4. By order dated 15.04.2008 of the Additional District Judge, Delhi in Civil Suit No. 43 of2009 filed by the respondents, the suit as against Defendant Nos. 5 and 6 was rejected and it was held that the plaint did not disclose any cause of action against then~. Defendant No. 5 was the plaintiff in Suit No. 44 of 2009 and Defendant No. 6 fs her husband. That Defendant No. 5 is the applicant before this Court.

5. Thus. the only ground taken up in the application filed under Order 18 Rule 17 of the CPC is that after consolidation of the suits, the plaintiff in Civil Suit No. 43 of2009 should get an opportunity to crossexamine the PW-I (Defendant No. 5 in Civil suit No. 43 of2009).

6. It is interesting to note that in the order dated 24.02.20 I 0 passed by the Additional District Judge in Civil Suit No. 44 of2009, it has been observed by the Court that the plaintiff in Civil Suit No. 44 of2009 is no more a party to Civil Suit No. 43 of 2009 and the earlier order of consolidation of suits dated 08.12.2007 was maintained, further clarifying that the past evidence of plaintiff in Civil Suit No. 44 of2009, which has already been recorded, to be treated as the main suit.

7. We shall extract the order dated 24.02.2010, which reads as follows:

"Since the facts in this suit and suit No. 43/09 are intertwined even though Plaintiff is no more a party to suit No. 43/09, her claim for declaration to suit property therein may have reflection on the entitlement of Plaintiff, therefore, with the consent of both

sides, the consolidation order dated 8.12.2007 is being maintained A and suit No. 44109 where past evidence of Plaintiff Ram Rati has been recorded is treated as main suit."

8. But it has to be noted that the Suit No. 43 of 2009 sta11ds rejected against that PW-I (Defendant No.5). Not only that, being a defendant in Suit No. 44 of 2009, PW-I had been cross-examined also by the respondent herein. What is lost, ifat al I it can be termed so, is the opportunity to cross-examine in the capacity as plaintiff in O.S. No. 43 of 2009. But that suit, as noted above, had already been rejected as against PW-I (Defendant No. 5), appellant herein. Unfortunately, both the courts have taken the view that the examination of PW- I in Suit No. 44 of2009 having taken place prior to consolidation, the plaintiff in Suit No. 43 of2009 did not get an opportunity to cross-examine him.

9. The trial court, by order dated 18.12.20 I 0, allowed the application filed by the respondent ... "for further elaboration on the left oHt points by the parties ... ". The High Court, in the impugned order, endorsed the view taken by the trial court, holding that ... "reading the impugned order shows that the witness has been recalled, if available for further elaboration on the left out points to both the parties". Since, the High Court and trial court have taken a wholly wrong approach in the matter and against the settled principles of law, it has become necessary for us to restate the law as well.

I 0. Order 18 ofCPC deals with hearing of the sttit and examination of witnesses. By an amendment introduced thereunder with effect from 01.02.1977, Rule 17 A was introduced permitting production of evidence not previously known or which could not be produced despite due diligence. It appears, the amendment only caused unnecessary protraction of the litigation, and hence, the said provision was omitted by The Code of Civil Procedure (Amendment) Act, 1999 with effect from 01.07.2002.

However, Rule 17 was retained which reads as f\1llows:

"17. Court may recall '1nd 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."

11. The respondent filed the application under Rule 17 read with Secticn 151 of the CPC invoking the inherent powers of the court to make orders for the ends of justice or to prevent abuse of the process of H

A the court. The basic purpose of Rule 17 is to enable the court to clarify

any position or doubt, and the court may, either suo 1110111 or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the B court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. 'No prejudice is caused to either party' is also not a C permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground.

12. In Vadiraj Naggappa Vernekar (Dead) Through LRs. v.

D Sharadchandra Prabhakar Gogate 1, this principle has been summarized at paragraphs- 25, 28 and 29:

"25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the pat1ies for recall of witnesses, the main purpose of the said Rule E 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.

The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.

xx.x xxx xxx

28. The power underthe 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

H '(2009) 4 sec 410

which has already been recorded but to clear any ambiguity that A may have arisen during the course of his examination."

13. In K.K. Velusamy v. N. Palanisamy', the principles enunciated in Vadiraj (supra) have been followed, holding at paragraphs- 9 and IO:

"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 cou11 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 GoKafe.)

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-chiefor 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 clarifj' any issue or doubt, by recalling any witness either suo motu, 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."

14. The rigour under Rule 17, however, does not affect the inherent powers of the court to pass the required orders for ends of justice to reopen the evidence for the purpose of further examination or crossexamination or even for production of fresh evidence. This power can also be exercised at any stage of the suit, even after closure of evidence.

Thus, the inherent power is the only recourse, as held by this Court in K.K. Velusamy (supra) at paragraph-I I, which reads as follows:

2 (2011) II SCC275

I c.

11. There is no specific provision in the Code enabling the parties to reopen the evidence for the purpose offu1ther examination-inchief or cross-examination. Section I 5 I of the Code provides that nothing in the Code 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 exa111ination or cross-exa111ination, for purposes other than securing dari lication re4u ired by the cou11, the inherent power under Section .

I 5 I of 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 affocted 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."

I 5. After surveying the various principles stated by this Court on Section I 5 I from 1961, in K.K. Vclusamy (supra), they have been succinctly summarized as follows under paragraph-12:

.. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx

a) Section I 5 1 is not a substantive provision which cremes or confers any power or jurisdiction on courts. It merely recognises the discretionmy power inherent in eve1y comt as a necessary corollary for renderingjustice in accordance with law, to do what is "'right"' and undo what is 'wrong·. that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, Section 1 SI recognises and confirms that if the Code does not expressly or impliedly cover any pa1ticular procedural aspect, the inherent power can be used to deal with such situation or aspect. if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances.

(c) /\court has no power to do that which is prohibited by law or the Code, by purported exercise o!' its inherent powers. If the

Code contains provisions dealing with a particular topic or aspect,

RAM RATI v. MANGE RAM (D) THROUGH LRS. [KURIAN J.]

and such provisions either expressly or by necessary implication exhaust the scope of the power of the cou1t or the jurisdiction that may be exercised in relation to that malter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent wfrh such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.

(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court. and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte bla11che to grant any relief.

(f) The power under Section I 5 I wi II have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of cou1t."

16. Some good guidance on invocation of Section 151 of the CPC to reopen an evidence or production of fresh evidence is also available in K.K. Vclusamy (supra). To quote paragraph-14:

"14. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately a tier the completion of evidence and then proceed to judgment. Therefore. it was unnecessary to have an express provision for reopening the evidence to examine a fresh witness or for recalling any witness

for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands on earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under Section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose."

17. Vadiraj (supra) and K.K. Velusamy (supra) have also found affirmation by this Court in Bagai Construction Through its Proprietor Lalit Bagai v. Gupta Building Material Store'.

18. The settled legal position under Order 18 Rule 17 read with Section 151 of the 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 D points", is wholly impermissible in law.

19. In the above circumstances, the impugned order is set aside and the appeal is allowed.

20. We are informed that during the pendency of the appeal, the E evidence has been closed and what remains is only the final arguments.

In view of the above, we direct the trial court to dispose of the suits expeditiously and preferably within one moth from the date ofreceipt of a copy of this order.

21 . There shall be no order as to costs.

F Kalpana K. Tripathy Appeal allowed.

'r2013) 14 sec 1