Tuesday 3 February 2015

Whether application for re-examination of witness is permissible when matter is posted for judgment?

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,


            CIVIL APPEAL NO.  1787  OF 2013

M/s Bagai Construction          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.


                                   (P. SATHASIVAM)


                               (JAGDISH SINGH KHEHAR)


FEBRUARY 22, 2013.

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