Sunday, 28 August 2016

Whether court can permit recall of witness using its inherent powers U/S 151 of CPC?

There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code 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 re-opening 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 the Code, subject to its limitations, can be invoked in appropriate cases to re- open 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.
Reportable
Supreme Court of India
K.K. Velusamy vs N. Palaanisamy on 30 March, 2011
Bench: R.V. Raveendran, A.K. Patnaik
Citation:2011 AIR SCW2296
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Whether court can permit recall of witness when case was fixed for delivery of Judgment?

 I have heard the learned counsel for the parties at length. Order xviii Rule 17 runs as under: 104 "The Court may at any stage of the 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." 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 mist be exercised judicially and on well accepted judicial principles and not arbitrarily or capriciously.
The learned counsel for the respondent has adverted to a couple of reported decisions, viz ,T. Ramachandra Murthy v. K. Rama Murthy and others, Air 1980 Andhra Pradesh 265 and Altaf Hussain v. Nasreen Zahra, , in support of his contention that the power vesting under Rule 17 cannot be exercised so as to enable a party to fill up the lacuna in evidence. In the former case, there is no doubt, an observation to this effect. In the said case an application for recalling a witness was made after the judgment had been reserved. The learned Judge, therefore, observed that "the jurisdiction of the Court was sought to be invoked for recalling the witness at the time when the hearing of the case was over". With great respect I do not agree that the stage of the case alone should weigh with the Court to an extent as to over-shadow the other aspects of the matter. As observed by me above and also in Altaf Hussain's case (supra), the power under this rule can be exercised even of the stage of writing a judgment. It bears repetition that the object in the instant case is not to fill up the lacuna by adducing any fresh evidence but it is only to bring the proper admissible evidence on record which was somehow left out and instead photostat copies had been filed.
(8) In the second case, it was observed by a learned Judge of Allahabad High Court that the power under Rule 17 should not be exercised lightly and it should be used sparingly and in exceptional cases only. I am in respectful agreement with this view and I feel that the instant is a case in which the interests of justice demand that the petitioner should be permitted to bring proper documents on the record rather than be punished for certain lapses on his part which may well be attributed to inadvertence or lack of proper advice. Certainly the respondent can be compensated by awarding costs and also by affording an opportunity to adduce any evidence in rebuttal, if he so wishes.
Delhi High Court
Suresh Kumar vs Baldev Raj on 24 May, 1984
Equivalent citations: AIR 1984 Delhi 439, 26 (1984) DLT 213, 1984 (7) DRJ 101, 1984 RLR 631

Bench: J Jain
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When court can permit recall of witness for exhibition of documents?

 In Ram Sahai v. Kuberdan, (1956 Raj LW 306) (supra) it was held that certainly Order 18 Rule 17 authorises a court to recall a witness but for the purposes of putting any questions which the court itself might think necessary. It does not authorise a party to have a witness, whom he has already cross examined, recalled for the purpose of further cross examination. This citation obviously does not apply to the case in hand because here the plaintiff is himself recalling the witness because certain documents were not exhibited due to the lapse on the part of the advocate. In Shyamapada Neogy's case, (1967 (71) Cal WN 747) (supra) it was observed that it is only under special circumstances that such an order can be passed. I am of the view that when the court below after having considered ail the points has allowed the application under Section 151 CPC, the order should not be interfered with as no prejudice is, being caused to the defendant as they have been compensated by payment of cost of Rs. 2,000/-and will have opportunity to cross examine witnesses. The trial court has not committed an error of jurisdiction.
Rajasthan High Court
Jodhpur Gums & Chemicals Pvt. Ltd. vs Punjab National Bank And Ors. on 30 October, 1998
Equivalent citations: AIR 1999 Raj 38, 1999 (2) WLC 280

Bench: M Yamin
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When suit filed by company through its officer is validly instituted?

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 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 de hors 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. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer.
Supreme Court of India
United Bank Of India vs Sh. Naresh Kumar And Ors on 18 September, 1996

BENCH:
KIRPAL B.N. (J)
BHARUCHA S.P. (J)

Citation:AIR 1997 SC 3:1996 SCC(6)660
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