Allahabad High Court
Pankaj Kumar vs Smt. Chhaya & 3 Others on 1 December, 2015
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
AFR
Case :- CIVIL REVISION DEFECTIVE No. - 240 of 2015
Revisionist :- Pankaj Kumar
Opposite Party :- Smt. Chhaya & 3 Others
Counsel for Revisionist :- Amar Jeet Upadhyay
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the revisionist.
The revisionist has come up challenging the order dated 18.11.2015 whereby his application being Paper No. 108-C for seeking recall of the witness nos. PW-1, PW-2 and PW-3 was moved under Order 18 Rule 17 of C.P.C.
The court below has clearly recorded that the issues were framed on 23.4.2013; PW-1 was examined on 12.9.2013; PW-2 was examined on 3.10.2013 and PW-3 was examined on 6.2.2014. Subsequent to that witness of the revisionist was also DW-1 was examined on 28.4.2014 and DW-2 was examined on 13.7.2014. Subsequently, the case was fixed for hearing for arguments and the revisionist never came forward to argue the case and application for adjourning the case were constantly being filed by him and even, transfer application was also moved by him, which was dismissed.
The respondent Insurance-Company had filed its written argument and 18.11.2015 was fixed for judgment, on which date the aforesaid application being Paper No. 108-C was moved by the opposite party.
The aforesaid application was rejected on the ground that at this stage delay is being caused by the revisionist and there appears to some collusion between the claimants and the opposite party no. 1 as such application was rejected.
A reference may be made to a decision of the Hon'ble Apex Court in the case of Vadiraj Naggappa Vernekar Vs. Sharadchandra Prbhakar Gogate, 2009 (4) SCC 410. Paragraphs 25, 28 and 29 of the aforesaid judgment are quoted 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.
(emphasis supplied)
A reference may also be made to a decision of Hon'ble Apex Court in the case of K.K. Velusamy Vs. N. Palanisamy, 2011 (11) SCC 275. Relevant paragraph 19 of the aforesaid judgment is quoted as under:-
"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."
(emphasis supplied)
A reference may also be made to a decision of the Hon'ble Apex Court in the case of Bagai Construction Vs. Gupta Building Material Store, 2013 (14) SCC 1, wherein the Hon'ble Apex Court has held that when evidence is closed, arguments are heard and case is to come up for judgment, Order 18 Rule 17 should not be pressed into service. Relevant paragraph 14 of the aforesaid judgment is quoted as under:-
"14) 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."
(emphasis supplied)
In such view of the matter, I do not find any illegality in the order impugned herein. In the facts and circumstances of the case as already discussed, the present revision lacks merit and is accordingly dismissed.
Order Date :- 1.12.2015
Lalit Shukla
