HIGH COURT OF JUDICATURE AT ALLAHABAD REPORTABLE Court No. - 36 Case :- MATTERS UNDER ARTICLE 227 No. - 4116 of 2017 Petitioner :- Leeladhar Respondent :- Mohammad Ismail Qureshi Counsel for Petitioner :- Pranab Kumar Ganguli Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner.
The present petition is directed against the order dated 28.3.2017 passed by the Additional Civil Judge (Junior Division)/Additional Judge, Small Causes Court, Bareilly in Original Suit No. 222 of 2011 (Leeladhar vs. Md. Ismail Qureshi) and the order dated 15.4.2017 passed by the District Judge, Bareilly in Civil Revision No. 23 of 2017 (Leeladhar vs. Md. Ismail Qureshi).
The petitioner is plaintiff in the aforesaid suit which has been filed with the prayer to declare the agreement to sell (Muayedavay) dated 2.12.2010 as void document. The defendant/respondent is contesting the suit on the ground that Rs. 70,000/- was paid to the plaintiff at the time of execution of the agreement to sell dated 2.12.2010. The examination-in-chief of the plaintiff's witness PW-3 Beem Sen was filed on an affidavit dated 26.3.2017. It appears that on 26.7.2017, he was cross-examined by the defendant's counsel. He was shaken and deposed in contradiction to what he had deposed in his examination-in-chief. As a result thereof, on 28.3.2017, an application 52C was moved by the plaintiff/petitioner with the prayer to recall the said witness. The said application 52C was dismissed vide order dated 28.3.2017 and affirmed in revision. Hence this petition.
Learned counsel for the petitioner vehemently urged that his witness has taken u-turn in cross-examination and as his witness has become hostile, it is necessary for the plaintiff to cross examine his own witness to elicit the truth. With this view of the matter, the plaintiff moved application for recall of the said witness namely PW-3.
With reference to Section 138 and Section 154 of the Indian Evidence Act, it is vehemently contented by learned counsel for the petitioner that a witness can be recalled at any time of the proceedings. In the facts and circumstances of the instant case, the Court below could not have rejected the application to recall the plaintiff's witness.
Reliance is placed upon the judgment of High Court of Calcutta in the case of State of West Bengal vs. Arunesh Pathak1 to submit that the right to re-examination is absolute.
To deal with the submissions of learned counsel for the petitioner, it would be appropriate to go through the relevant provisions as contained in the Code of Civil Procedure and the Evidence Act. Order 18 Rule 17 of the Code of Civil Procedure which provides for recall of any witness, at any stage of a suit is reproduced as under:-
"Order 18 Rule 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."
A careful reading of the said provision shows that it only enables the Court to recall a witness in order to clarify any issue or doubt either suo motu or at the request of any party. There is no specific provision in the Code, however, enabling the parties to reopen the evidence for the purpose of further examination-in-chief or cross-examination.
Section 151 of the Code, however, speaks of inherent powers of the Court which is circumscribed by the limitations provided therein:-
"Section 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."
Further Section 138 and Section 154 of the Indian Evidence Act read as under:-
"138. Order of examinations.--Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination.-The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
Section 154. Question by party to his own witness.--[(1)] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.]"
The inherent power of the Court under Section 151 of the Code of Civil Procedure for reopening of evidence and for recalling witness and the powers of the Court provided under Order 18 Rule 17 of the Code has been considered and explained by the Apex Court in K.K. Velusamy vs. N. Palanisamy2.
Relevant paragraphs 9, 10, 11, 12 and 19 reproduced as under:-
"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 court 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 Gogate 2009 (4) SCC 410].
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- chief or 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 clarify any issue or doubt, by recalling any witness either suo moto, 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.
11. 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.
12. The respondent contended that Section 151 cannot be used for re- opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of Section 151 has been explained by this Court in several decisions (See : Padam Sen vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs. Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1). We may summarize them as follows:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice 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 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular 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 co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with 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 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 blanche to grant any relief.
(f) The power under Section 151 will 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 court.
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."
In a previous pronouncement by the Apex Court in the case of Vadiraj Naggappa Vernekar (Dead) Through LRs. vs. Sharadchandra Prabhakar Gogate3, it had been held that the power under the provisions of Order 18 Rule 17 CPC for recall of witness 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 such power is to be exercised sparingly in an appropriate case and not as a general rule merely on the ground that the recall or re-examination of witness would not cause any prejudice to the parties. Such power is not to be invoked to fill up the lacuna 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. It is always within the jurisdiction of the trial court to permit to recall such a witness for re-examination-in-chief with further permission to the defendant to cross-examine the witness, thereafter. It is ultimately within the Court's discretion, if it deems fit, to allow such an application.
In a recent decision in Gayathri vs. M. Girish4 reiterating the principles laid down in K.K. Velusamy (supra) and having noted paragraphs 9, 10, 19 and 21 of the said judgment, the Apex Court has observed as under:-
"xxxxxxxxxxxxxxxxxxxxxxxxWe have referred to the said paragraphs to show the purpose of filing an application under Order 18 Rule 17 of the Code. We may add that though in the said decision this Court allowed the appeals in part, the fact situation, the conduct of the party and the grievance agitated were different. The Court also thought it apposite to add a word of caution and also laid down that if the application is mischievous or frivolous, it is desirable to reject the application with costs."
As far as the contention of learned counsel for the petitioner/plaintiff that the plaintiff's witness has turned hostile and, therefore, it was necessary to recall the witness to elicit the truth, it would be pertinent to note that the terms "hostile", "adverse" or "unfavourable" are alien to the Indian Evidence Act. Section 154 of the Indian Evidence Act empowers a Court, in its discretion to, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. However, such discretion again is to be exercised in a judicious manner by proper application of mind and keeping in view the attending circumstances of the case. Permission for cross-examination in terms of Section 154 of the Evidence Act also cannot be granted at the mere asking of the party calling the witness.
The principles laid down by the Apex Court in Gura Singh vs. State of Rajasthan5 are relevant to be quoted as under:-
"12. The terms "hostile", "adverse" or "unfavourable" witnesses are alien to the Indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English Law. The rule of not permitting a party calling the witness to cross examine are relaxed under the common law by evolving the terms "hostile witness and unfavourable witness". Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and a unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. In India the right to cross-examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading questions cannot be put to the witness in examination-in-chief or in re- examination except with the permission of the court. The court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness. Extensively dealing with the terms "hostile, adverse and unfavourable witnesses" and the object of the provisions of the Evidence Act this Court in Sat Paul v. Delhi Administration (SCC pp. 141-43 & 745-46, paras 38-40 & 52] held:
"38. To steer clear of the controversy over the meaning of the terms 'hostile' witness, 'adverse' witness, 'unfavourable' witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared 'adverse' or 'hostile'. Whether it be the grant of permission under Sec.142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross- examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observfations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi), AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of 'hostility'. It is to be liberally exercised whenever the court from the witnesses's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as 'declared hostile', 'declared unfavourable', the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts."
39. It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under S.155. Under the English Act of 1865, a party calling the witness, can 'cross-examine' and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be 'adverse'. As already noticed, no such condition has been laid down in Ss.154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the court, the exercise of which is not fettered by or dependent upon the 'hostility' or 'adverseness' of the witness. In this respect, the Indian Evidence Act is in advance of the English Law. The Criminal Law Revision Committee of England in its 11th Report, made recently, has recommended the adoption of a modernised version of S.3 of the Criminal Procedure Act, 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the court. The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character.
40. The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for, interpreting and applying the Indian Evidence Act has been pointed out in several authoritative pronouncements. In Prafulla Kumar Sarkar v. Emperor, ILR 58 Cal 1404 = (AIR 1931 Cal. 401)(FB)an eminent Chief Justice, Sir George Rankin cautioned, that 'when we are invited to hark back to dicta delivered by English Judges, however, eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact'.
It was emphasised that these departures from English Law 'were taken either to be improvements in themselves or calculated to work better under Indian conditions'.
xxxxxxxx52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discrediated, the Judge should, as a matter of prudence, discard his evidence in toto."
From the above discussion, the principles emerged for dealing with the application for recall of witness are that though the power under Order 18 Rule 17 CPC readwith Section 151 CPC and Section 138 readwith Section 154 of the Indian Evidence Act is wide powers vested with the Court but it is to be exercised judicially and also with extreme care and caution and, in any case, is not to be utilized for filling up the gaps or contradiction in the evidence of the witness which had been elicited during the cross examination.
In the instant case, it is obvious that only after cross-examination of the plaintiff's witness, certain contradictions with his statement in examination-in-chief have been pointed out. Admittedly, the suit is at the stage of evidence, the evidence of the plaintiff though has been concluded, however, it is always open for the plaintiff to lead further evidence to prove his case by moving a proper application before the Court concerned. The deposition of PW-3 recorded in his examination-in-chief and cross-examination has to be read together by the Court in order to find out the truth of the case of the plaintiff. The facts situation of the present case, does not make out a case for recall of the plaintiff's witness after his cross-examination has been completed. The discretion exercised by the trial court is not open to criticism within the scope of Article 227 of the Constitution of India merely because another view can possibly be taken by the Court in exercise of such discretion.
In view of the reasons given above, this court is of the considered opinion that the orders passed by Courts below do not require any interference. The decision of the Calcutta High Court in the case of State of West Bengal (supra) is clearly distinguishable in the facts and circumstances of the present case.
For the above noted reasons, the present petition is dismissed.
Order Date :- 30.8.2017
B.K./- (Sunita Agarwal, J.)