Chattisgarh High Court
Aatmaram vs Chanderram on 13 December, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP (227) No. 674 of 2021
1. Aatmaram S/o Setram Patel, aged about 52 years,
2. Asharam S/o Setram Patel, aged about 42 years, Occupation Job,
Both are R/o village Pamgarh, Tahsil Kharsiya, District Raigarh (C.G.).
---- Petitioners
Versus
1. Chanderram S/o Mitthuram Patel, aged about 39 years, Occupation
Farmer, R/o Village Pamgarh, Tahsil Kharsiya, District Raigarh (C.G.).
2. State of Chhattisgarh, Through Collector, Raigarh District Raigarh (C.G.)
--Respondents
For Petitioners : Mr. Sanjay Agrawal, Advocate
For Respondent No.2 : Mr. Wasim Miyan, Advocate
For Respondent No.1 : None.
Hon'ble Shri Justice Deepak Kumar Tiwari
Order on Board
13/12/2021
1. The instant writ petition under article 227 of the Constitution of India has
been preferred against the order dated 30/10/2021 passed in Civil Suit No.
6A/10 (Aatmaram and another v. Chanderram and another) by the First
Civil Judge, Class-2 whereby application under order 18 Rule 17 of the
Code of Civil Procedure (for short 'the CPC') for further cross-
examination of plaintiffs' witnesses filed by defendant No. 1 has been
allowed.
2. Facts
of the case are that the petitioners/plaintiffs filed a suit for
declaration of title, possession and permanent injunction against
respondent No.1/defendant No.1 on 26/04/2010. In the said case, the
plaintiffs' evidence were closed in the year 2017. Defendant No.1 filed an
affidavit under Order 18 Rule 4 of the CPC on 13/07/2017. After
submitting the affidavit, defendant No.1 with an intention to delay the
cross-examination of himself, filed an application under Order 12 Rule 5
of the CPC to cause the delay which was rejected by the Court below vide
its order dated 24/07/2019. After closure of evidence of plaintiffs and at
the stage of evidence of defendants, the defendant No.1 filed an
application under Order 18 Rule 17 of the CPC. The said application was
opposed by the plaintiffs but by the impugned order the said application
has been allowed.
3. Counsel for the petitioners submits that respondent No.1/defendant No.1
adopted lingering tactics to commit delay in delivery of justice and the
order passed by the Court below is completely against the provisions of
the CPC, therefore, prayer is made to set-aside the impugned order.
4. I have heard counsel for the petitioners and perused the petition as well as
the documents annexed with it.
5. In K.K. Velusamy v. N. Palaanisamy on 30 March, 2011 (SC) reported
in (2011) 11 SCC 275, it has been held in paragraphs 11 & 12 as under:-
"11. The Code earlier had a specific provision in Order 18 Rule
17A for production of evidence not previously known or the
evidence which could not be produced despite due diligence. It
enabled the court to permit a party to produce any evidence
even at a late stage, after the conclusion of his evidence if he
satisfied the court that even after the exercise of due diligence,
the evidence was not within his knowledge and could not be
produced by him when he was leading the evidence. That
provision was deleted with effect from 1.7.2002. The deletion of
the said provision does not mean that no evidence can be
received at all, after a party closes his evidence. It only means
that the amended structure of the Code found no need for such a
provision, as the amended Code contemplated little or no time
gap between completion of evidence and commencement and
conclusion of arguments. Another reason for its deletion was the
misuse thereof by the parties to prolong the proceedings under
the pretext of discovery of new evidence.
12. The amended provisions of the Code contemplate and expect
a trial court to hear the arguments immediately after the
completion of evidence and then proceed to judgment.
Therefore, it was unnecessary to have an express provision for
re-opening the evidence to examine a fresh witness or for
recalling any witness for further examination. But if there is a
time gap between the completion of evidence and hearing of the
arguments, for whatsoever reason, and if in that interregnum, a
party comes across some evidence which he could not lay his
hands earlier, or some evidence in regard to the conduct or
action of the other party comes into existence, the court may in
exercise of its inherent power under section 151 of the Code,
permit the production of such evidence if it is relevant and
necessary in the interest of justice, subject to such terms as the
court may deem fit to impose."
6. In the present case, respondent No.1/defendant No.1 had filed certain
documents which were allowed by the Court below on 04/01/2020 as
revealed in the impugned order. The Court below observed that as the
evidence of plaintiffs had closed and the documents accepted later on
were necessary to decide the lis. So, the application filed by defendant
No.1 to examine the plaintiffs, after imposing cost of Rs. 1000/- and
giving an opportunity to ask question limited to the said documents were
allowed which in the opinion of this Court appears to be legal and proper
and does not call for any interference. It is ultimately within the Court
discretion, if it deems fit to allow such an application. The provisions of
Order 18 rule 17 of the CPC interprets to include the application filed by
the parties for recalling the witnesses. The main purpose of the said rule
is to enable the Court while trying a suit to clarify any doubt 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
witnesses who have already been examined.
7. In the present case, the documents were accepted by the Court below after
closing the evidence of witnesses and the said order was not challenged
even on the application filed under Order 18 rule 17 of the CPC. The
petitioners/plaintiffs have raised only one objection that the defendant
No.1 has adopted lingering tactics for which the Court below has imposed
the cost. So, for the aforesaid reasons, this Court does not find any
substance in the writ petition and affirmed the impugned order.
8. Accordingly, the petition is dismissed. However, the trial Court is directed
to decide the lis as early as possible, preferably within 6 months from the
date of receipt of copy of this order.
Sd/-
(Deepak Kumar Tiwari)
Judge
rahul
