S. 151, Or. 18 R. 17 and Or. 7 R. 14 - Recall of witness - Filing of application for re-examination of witness, when matter
posted for judgment - Exercise of inherent powers - Impermissibility of - Respondent-plaintiff filing suit for recovery of an
amount - When matter posted for judgment, respondent-plaintiff filed application to submit some more documents and
recall of PW 1 for proving those documents - Trial court rejected that application whereas High Court permitted it -
Unsustainability of - Held, though application was filed for filing of original copies of bills but they were not placed on
record even though they were in the exclusive possession of respondent-plaintiff - At such belated stage, when evidence
had concluded and arguments were heard, submission of bills was improper and respondent-plaintiff cannot be permitted
to fill up its lacunae in its case - No acceptable reasons or causes made out for accepting that application at the belated
stage despite sufficient opportunity being given to respondent-plaintiff to prove its case - When such application filed at a
very belated stage, even inherent powers under S. 151 cannot be used,
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO. 1787 OF 2013
M/s Bagai Construction V M/s Gupta Building Material Store
Citation;(2013)14SCC1:AIR 2013 SC1849
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the order dated 23.08.2011 passed by
the High Court of Delhi at New Delhi in C.M.(M) No. 707 of 2010 (Civil
Revision No. 707 of 2010) whereby the learned single Judge of the High
Court allowed the revision filed by the respondent herein and set aside the
order dated 25.02.2010 of the Additional District Judge, Delhi.
3) Brief facts:
(a) The appellant is a proprietorship concern dealing in interior
decoration and construction work and Mr. Lalit Bagai is the sole proprietor
of the said concern. The respondent is a partnership firm registered with
the Registrar of Firms vide Registration No. 1237/93 dated 07.06.1993 and
is engaged in the business of sale and supply of building materials.
(b) Admittedly, the appellant and respondent have often transacted with
each other. According to the respondent, the appellant made various
purchases on credit from them for which payments were made in parts and the
same were credited to his account maintained by them. It is alleged by the
respondent that after adjusting all the payments being made by the
appellant, an amount of Rs.4,35,250.18 is due against his firm. Despite
repeated demands, requests, and reminders, the appellant has not cleared
the outstanding amount. Therefore, the respondent sent legal notice dated
11.04.2005 to the appellant through his counsel calling upon him to pay the
outstanding dues along with interest @ 2% per month. Despite notice, the
appellant did not pay any amount, therefore, the respondent instituted a
suit against him for recovery of sum of Rs.4,35,250.18 along with interest
accrued thereon. After the arguments were concluded in the suit on
27.10.2009, the matter was adjourned for judgment on 03.11.2009.
(c) In the meantime, on 31.10.2009 the respondent moved two applications,
one under Order VII Rule 14 read with Section 151 of the Code of Civil
Procedure, 1908 (in short “CPC”) for placing on record certain documents
and the other under Order XVIII Rule 17 read with Section 151 of CPC for
seeking permission to recall PW-1 for proving certain documents by leading
his additional evidence. By order dated 25.02.2010, the Additional
District Judge, Delhi dismissed both the applications.
(d) Dissatisfied with the said order, the respondent filed revision
petition being CM (M) No. 707 of 2010 (Civil Revision No. 707 of 2010)
before the High Court of Delhi. The learned single Judge of the High Court
by impugned order dated 23.08.2011 allowed the revision and set aside the
order dated 25.02.2010 passed by the Additional District Judge, Delhi.
(e) Aggrieved by the said order, the appellant has preferred this appeal
by way of special leave.
4) Heard Mr. Siddharth Yadav, learned counsel for the appellant and Mr.
Jinendra Jain, learned counsel for the respondent.
5) The only point for consideration in this appeal is whether the
plaintiff has made out a case for allowing the applications one filed under
Order XVIII Rule 17 read with Section 151 CPC and another application under
Order VII Rule 14 read with Section 151 CPC? The trial Court dismissed
both the applications, however, the High Court by the impugned order set
aside the order of the trial Court and directed taking on record the bills
which are proposed to be filed by the plaintiff, granted permission to
recall PW-1 to prove those bills. The High Court passed such order in
favour of the plaintiff subject to payment of cost of Rs.5,000/-
6) In order to find out the acceptability of the impugned order or not,
it is useful to refer the relevant provisions of the CPC which read thus:
“Order VII Rule 14
14. Production of document on which plaintiff sues or relies.- (1)
Where a plaintiff sues upon a document or relies upon 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.
(4) Nothing in this rule shall apply to document produced for the
cross examination of the plaintiff’s witnesses, or, handed over to a
witness merely to refresh his memory.”
Order XVIII Rule 17
“17. 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.”
Section 151 of CPC
“151. Saving of inherent powers of Court.- Nothing in this Code shall
be deemed to limit or otherwise affect the inherent power of the Court
to make such orders as may be necessary for the ends of justice or to
prevent abuse of the process of the Court.”
7) Before going into the merits of claim of both the parties, let us
recapitulate the views expressed by this Court through recent decisions.
8) In Vadiraj Naggappa Vernekar (dead) through LRs. vs. Sharadchandra
Prabhakar Gogate, (2009) 4 SCC 410, this Court had an occasion to consider
similar claim, particularly, application filed under Order XVIII Rule 17
and held as under:
“25. In our view, though the provisions of Order 18 Rule 17 CPC have
been interpreted to include applications to be filed by the parties
for recall of witnesses, the main purpose of the said Rule 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.
28. The power under the 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 which has already been
recorded but to clear any ambiguity that may have arisen during the
course of his examination.
31. Some of the principles akin to Order 47 CPC may be applied when a
party makes an application under the provisions of Order 18 Rule 17
CPC, but it is ultimately within the court's discretion, if it deems
fit, to allow such an application. In the present appeal, no such case
has been made out.”
9) If we apply the principles enunciated in the above case and the
limitation as explained with regard to the application under Order XVIII
Rule 17, the applications filed by the plaintiff have to be rejected.
However, learned counsel for the respondent by placing heavy reliance on a
subsequent decision, namely, K.K. Velusamy vs. N. Palanisamy, (2011) 11 SCC
275, submitted that with the aid of Section 151 CPC, the plaintiff may be
given an opportunity to put additional evidence and to recall PW-1 to prove
those documents and if need arises other side may be compensated.
According to him, since the High Court has adopted the said course, there
is no need to interfere with the same.
10) In Velusamy (supra) even after considering the principles laid down
in Vadiraj Naggappa Vernekar (supra) and taking note of Section 151 CPC,
this Court concluded that in the interests of justice and to prevent abuse
of the process of the Court, the trial Court is free to consider whether it
was necessary to reopen the evidence and if so, in what manner and to what
extent. Further, it is observed that the evidence should be permitted in
exercise of its power under Section 151 of the Code. The following
principles laid down in that case are relevant:
“19. We may add a word of caution. The power under Section 151 or
Order 18 Rule 17 of the Code is not intended to be used routinely,
merely for the asking. If so used, it will defeat the very purpose of
various amendments to the Code to expedite trials. But where the
application is found to be bona fide and where the additional
evidence, oral or documentary, will assist the court to clarify the
evidence on the issues and will assist in rendering justice, and the
court is satisfied that non-production earlier was for valid and
sufficient reasons, the court may exercise its discretion to recall
the witnesses or permit the fresh evidence. But if it does so, it
should ensure that the process does not become a protracting tactic.
The court should firstly award appropriate costs to the other party to
compensate for the delay. Secondly, the court should take up and
complete the case within a fixed time schedule so that the delay is
avoided. Thirdly, if the application is found to be mischievous, or
frivolous, or to cover up negligence or lacunae, it should be rejected
with heavy costs.
With these principles, let us consider the merits of the case in hand.
11) The perusal of the materials placed by the plaintiff which are
intended to be marked as bills have already been mentioned by the plaintiff
in its statement of account but the original bills have not been placed on
record by the plaintiff till the date of filing of such application. It is
further seen that during the entire trial, those documents have remained in
exclusive possession of the plaintiff but for the reasons known to it,
still the plaintiff has not placed these bills on record. In such
circumstance, as rightly observed by the trial Court at this belated stage
and that too after the conclusion of the evidence and final arguments and
after reserving the matter for pronouncement of judgment, we are of the
view that the plaintiff cannot be permitted to file such applications to
fill the lacunae in its pleadings and evidence led by him. As rightly
observed by the trial Court, there is no acceptable reason or cause which
has been shown by the plaintiff as to why these documents were not placed
on record by the plaintiff during the entire trial. Unfortunately, the
High Court taking note of the words “at any stage” occurring in Order XVIII
Rule 17 casually set aside the order of the trial Court, allowed those
applications and permitted the plaintiff to place on record certain bills
and also granted permission to recall PW-1 to prove those bills. Though
power under Section 151 can be exercised if ends of justice so warrant and
to prevent abuse of process of the court and Court can exercise its
discretion to permit reopening of evidence or recalling of witness for
further examination/cross-examination after evidence led by the parties,
in the light of the information as shown in the order of the trial Court,
namely, those documents were very well available throughout the trial, we
are of the view that even by exercise of Section 151 of CPC, the plaintiff
cannot be permitted.
12) After change of various provisions by way of amendment in the CPC, it
is desirable that the recording of evidence should be continuous and
followed by arguments and decision thereon within a reasonable time. This
Court has repeatedly held that courts should constantly endeavour to follow
such a time schedule. If the same is not followed, the purpose of amending
several provisions in the Code would get defeated. In fact, applications
for adjournments, reopening and recalling are interim measures, could be as
far as possible avoided and only in compelling and acceptable reasons,
those applications are to be considered. We are satisfied that the
plaintiff has filed those two applications before the trial Court in order
to overcome the lacunae in the plaint, pleadings and evidence. It is not
the case of the plaintiff that it was not given adequate opportunity. In
fact, the materials placed show that the plaintiff has filed both the
applications after more than sufficient opportunity had been granted to it
to prove its case. During the entire trial, those documents have remained
in exclusive possession of the plaintiff, still plaintiff has not placed
those bills on record. It further shows that final arguments were heard on
number of times and judgment was reserved and only thereafter, in order to
improve its case, the plaintiff came forward with such an application to
avoid the final judgment against it. Such course is not permissible even
with the aid of Section 151 CPC.
13) Under these circumstances, the impugned order of the High Court dated
23.08.2011 in C.M. No. 707 of 2010 (Civil Revision No. 707 of 2010) is set
aside and the order dated 25.02.2010 of the trial Court is restored.
14) The appeal is allowed with no order as to costs.
...…………………………………J.
(P. SATHASIVAM)
...…………………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
FEBRUARY 22, 2013.
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