Saturday, 20 August 2016

Whether court can recalling of witness U/S 151 of CPC?

 It has been argued by the learned counsel for the petitioner
that even if such power may not expressly been read in the
provisions contained under Order 18 Rule 17, the Court can
exercise its inherent power under Section 151, therefore, to
do complete justice in the matter the trial Court should have
allowed the application.13. It is not a case where the CPC has not made any provision
for recalling the witness. Once a provision has made in form
of Rule 17 Order 18 of the CPC restricting the same to be
invoked by the Court for putting some questions to the
witness, but not allowing any party to the litigation to recall a
witness, in such a situation provision contained under
Section 151 of the CPC cannot be applied for recalling a
witness, which is otherwise not made permissible in CPC.
HIGH COURT OF CHHATTISGARH : BILASPUR

Single Bench : Hon’ble Shri Prashant Kumar Mishra, J.

Writ Petition (Art.227) No.918 of 2013

Ajay Kumar Agrawal
Versus

Smt. Sushila Bai and another

 (Passed on this 6th day of January, 2015)

1. These three writ petitions under Article 227 of the
Constitution of India have been preferred by the petitioner
who has filed three separate civil suits for eviction of therespondents. In all the suits, the trial Court has rejected the
petitioner/plaintiff's application under Order 18 Rule 17 of the
Code of Civil Procedure, 1908 (for short 'the CPC'), which
was preferred by him seeking permission to prove the
document by exhibiting the same.
2. The suits have been filed sometimes in the month of
December, 2005. The eviction has been sought on the
ground of arrears of rent; occupation of additional area
belonging to the landlord which was not let out to the
defendants and raising construction thereon as also on the
ground of denial of landlord's title. Plaintiff's evidence was
closed sometimes in April, 2011 and thereafter, he moved an
application on 14.11.2011 under Order 7 Rule 14 read with
Order 13 Rule 2 of the CPC seeking permission to produce
some photographs of the suit premises for confronting the
defendants at the time of their cross-examination. This
application was allowed by the trial Court on 10.05.2012 and,
thus, the photographs have been taken on record.
3. The subject application under Order 18 Rule 17 read with
Section 151 of the CPC were preferred on 26.09.2013
stating that the photographs which have been taken on
record were photographed by the plaintiff's attorney holderon 20.05.2005, however, they have not been exhibited and
proved, therefore, the plaintiff may be permitted to mark the
photographs as exhibits and prove the same so as to make it
admissible in evidence.
4. The defendants contested the application on submission that
the photographs are manipulated by misuse of computer and
electronic gadgets and they are not supported with any
negative or the bills submitted by the photographer,
therefore, they are not admissible in evidence and, as such,
it cannot be allowed to be exhibited. It has also been stated
that the photographs were allegedly taken in the year 2005
yet they were not produced at the time of plaintiff's
examination and, thus, the application is belated and
afterthought.
5. The trial Court has rejected the application by observing that
under Order 18 Rule 17 it is the discretion of the Court to
recall a witness to put questions to him and the said power is
to be exercised in rare and exceptional cases, which has not
occasioned in the case.
6. Learned counsel appearing for the petitioner would submit
that the photographs were taken on record, as the same
were produced for confronting the defendants during theircross-examination, however, when the defendants did not
enter the witness box, photographs remained un- exhibited,
therefore, it became necessary for the plaintiff to move the
subject application. Learned counsel would submit that the
application is neither belated nor mala fide, but exhibition of
document is necessary for proper adjudication of the suit.
Learned counsel would rely upon the decision of this Court
rendered in Gokul Vs. Rajwantin Bai & others1 and the
decision of Rajasthan High Court rendered in Jodhpur
Gums & Chemicals Pvt. Ltd. Vs. Punjab National Bank
and others2
.
7. Learned counsel appearing for the respondents would
submit that the provisions contained under Order 18 Rule 17
of the CPC enables the Court to recall a witness and put
questions and the same cannot be invoked at the instance of
a party. Learned counsel would rely upon the decision of the
High Court of Punjab and Haryana rendered in
Smt. Surinder Kaur Vs. Karanbir Singh and another3 and
the decision of High Court of Allahabad rendered in Altaf
Hussain Vs. Nasreen Zahra4
.
12005 (1) C.G.L.J. 215
2AIR 1999 Rajasthan 38
3AIR 2004 Punjab and Haryana 377
4AIR 1978 Allahabad 5158. Provisions contained under Order 18 Rule 17 of the CPC
reads as under:-
“R. 17. Court may recall and examine
witness.--The Court may at any stage of a
suit recall any witness who has been AIR
1978 Allahabad 515examined and may
(subject to the law of evidence for the time
being in force) put such questions to him as
the Court thinks fit.”
9. A bare reading of the provision would clearly indicate that
power to recall a witness has been conferred on the Court for
putting such questions to him as it thinks fit, but it nowhere
entitles a party to recall a witness for further crossexamination
or for making some additional statements or for
exhibiting and proving the documents.
10. In Balkrishna Shivappa Shetty V. Mahesh Nenshi Bhakta
and others AIR 2003 Bombay 293
, the High Court of Bombay, in para 11, has held
thus:-
“11. As already observed above, since the
provisions of law contained in Order 18, Rule
17 of the Code though nowhere empowers
the Court to allow a party to cross-examine a
witness by recalling such witness, and the
impugned order having been passed in
exercise of the provisions contained in Order
18, Rule 17, the same is unsustainable and
is liable to be set aside. The contention that
such powers can be exercised under Section
151 of the Code may be true in a given case
provided the materials on record justify such

order. As already observed above, in this
case, mere failure on the part of the
respondent Nos. 1 to 3 to take appropriate
steps at appropriate time in relation to
Exhibit-5, that will not ensure to their benefit
to seek the assistance of the Court for
exercise of its inherent powers under Section
151 to enable the party to fill the lacuna in
evidence. Besides, it should not be forgotten
that the inherent power is not to be exercised
in a manner which will be contrary to or
different from the procedure expressly
provided in the Code, as has been ruled by
the Apex Court in Padam Sen v. State of
Uttar Pradesh, reported in AIR 1961 SC 218.
The impugned order therefore cannot be
justified under Section 151 as there is no
material on record to warrant exercise of
powers under Section 151 to allow the
respondent Nos. 1 to 3 to recall the
defendant No.1 for the purpose of further
cross-examination.”
11. In Smt. Surinder Kaur (supra), it has been held that the
provisions contained under Order 18 Rule 17 of the CPC
should not be invoked and allow any party to fill up the
lacuna by recalling a witness.
12. It has been argued by the learned counsel for the petitioner
that even if such power may not expressly been read in the
provisions contained under Order 18 Rule 17, the Court can
exercise its inherent power under Section 151, therefore, to
do complete justice in the matter the trial Court should have
allowed the application.13. It is not a case where the CPC has not made any provision
for recalling the witness. Once a provision has made in form
of Rule 17 Order 18 of the CPC restricting the same to be
invoked by the Court for putting some questions to the
witness, but not allowing any party to the litigation to recall a
witness, in such a situation provision contained under
Section 151 of the CPC cannot be applied for recalling a
witness, which is otherwise not made permissible in CPC.
14. Even otherwise a reading of the subject application would
clearly indicate that no prayer for recall of the witness was
made. The only prayer made in the application was for
permitting the plaintiff to prove the documents. Rule 17 Order
18 of the CPC nowhere provides for such permission for
proving the document. It appears, the plaintiff being aware of
the limitation that a witness cannot be recalled at the
instance of a party to the suit, the application has been
couched in such a language where he has sought
permission to prove the document which once allowed would
automatically have the effect of recalling a witness.
15. Applying its earlier decisions in the matters of Surya Dev
Rai v. Ram Chander Rai6
 and Shalini Shyam Shetty v.
6
(2003) 6 SCC 675Rajendra Shankar Patil7
, the Supreme Court in Sameer
Suresh Gupta through PA Holder v. Rahul Kumar
Agarwal8
 has held that supervisory jurisdiction under Article
227 of the Constitution is exercised for keeping the
subordinate courts within the bounds of their jurisdiction.
When a subordinate court has assumed a jurisdiction which
it does not have or has failed to exercise a jurisdiction which
it does have or the jurisdiction though available is being
exercised by the court in a manner not permitted by law and
failure of justice or grave injustice has occasioned thereby,
the High Court may step in to exercise its supervisory
jurisdiction. It has also been held that supervisory jurisdiction
or certiorari jurisdiction is not available to correct mere errors
of fact or of law unless the following requirements are
satisfied : (i) the error is manifest and apparent on the face of
the proceedings such as when it is based on clear ignorance
or utter disregard of the provisions of law, and (ii) a grave
injustice or gross failure of justice has occasioned thereby.
The power to issue a writ of certiorari and the supervisory
jurisdiction are to be exercised sparingly and only in
appropriate cases where the judicial conscience of the High
7
(2010) 8 SCC 329
8
(2013) 9 SCC 374Court dictates it to act lest a gross failure of justice or grave
injustice should occasion.
16. Having considered the limited scope of interference under
Article 227 of the Constitution of India and for the reason that
the trial Court has not committed any such illegality or
irregularity warranting interference of this Court, all the writ
petitions are liable to be and are hereby dismissed, leaving
the parties to bear their own costs.
 J u d g e
i
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