Niraj Sharma vs Harvinder Singh
2017 Latest Caselaw 1865 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of decision: April 18, 2017

+        CM(M) 1040/2016
         NIRAJ SHARMA                                       ..... Petitioner
                            Through      Mr.Sudarshan Rajan and Mr.Arjun
                                         Gadhoke, Advs.
                 versus
         HARVINDER SINGH                                  ..... Respondent
                        Through          Mr.Kirti  Uppal,     Sr.Adv.   with
                                         Mr.T.D.Sharma and Mr.Ujjawal Jha,
                                         Advs.

         CORAM:
         HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

CM No.8736/2016 in CM(M)1040/2016

1. By the present application the applicant seeks recalling of order dated 17.10.2016 passed by this court by which one final opportunity was granted to the petitioner to cross-examine PW-4 on a date to be fixed by the trial court.

2. The petitioner/defendants No.1 to 3 had filed the present petition under Article 227 of the Constitution of India to impugn the order dated 03.09.2016 by which an application filed by the petitioner under Order 18 Rule 17 CPC for recalling of two witnesses, namely, PW-2 and PW-4 for their cross-examination was dismissed. The respondent has filed the present suit for possession.

3. This court on 17.10.2016 noted that despite service of advance copy of the petition on the respondents none had chosen to appear for the respondent. The court noted that PW-4 Shri Harvinder Singh is the plaintiff in the suit and that prejudice would be caused to the petitioner(defendants No. 1 to 3) in case he is not permitted to cross-examine PW-4. It also noted that an opportunity to cross-examine PW-4 was given to the petitioner only on 14.05.2015 i.e. the one opportunity whereupon the right was closed. Accordingly, limited relief was given to the petitioner permitting the petitioner to cross-examine PW-4 on a date to be fixed by the trial court on which date no adjournment will be taken by the petitioner. This court did not grant any relief regarding PW-2.

4. The respondents preferred an SLP (C) No.4123/2017 against the said order of this court dated 17.10.2016.

5. The Hon'ble Supreme Court one 13.2.2017 passed the following order:-

"It is contended by the learned counsel appearing for the petitioner that the High Court has allowed the application under Order XVIII Rule 17 of Civil Procedure Code, 1908, without issuing notice to the petitioner.

In the circumstances, we permit the petitioner to approach the High Court by filing an application seeking recall of the order on aforesaid ground. The application be filed within two weeks and the same shall be decided by the High Court on merits. The Special Leave Petition is disposed of, accordingly."

6. Present application has now been filed pursuant to the directions of the Supreme Court dated 13.2.2017.

7. I have heard learned senior counsel for the respondent and learned counsel for the petitioner.

8. Learned senior counsel for the respondent has submitted that the petitioner was guilty of gross suppression and delay. He points out to various orders where adjournments have been sought by the petitioners including orders dated 29.01.2014, 2.2.2015 and 29.6.2015 etc. He also submits that as is apparent from a perusal of the impugned order there is gross delay on the part of the petitioner in approaching the court for permission to cross- examine PW-2 and PW-4. He points out that the impugned order has noted that the counsel for the petitioner had carried out inspection of the court record on 26.9.2015 and 31.5.2016. Despite that the application for recall of PW-2 and PW-4 had been filed on 4.6.2016 after gross delay. It is also urged that in the application the only ground for delay stated is that the newly engaged counsel for the petitioner got the judicial file inspected and then realised that cross-examination of PW-4 stood closed on 14.5.2015. Hence, he submits that on account of the conduct of the petitioner no opportunity ought to have been granted to cross-examine PW-4 by this court. He also submits that in law provisions of Order 18 Rule 17 CPC cannot be used for recall of a witness in this manner. Reliance is placed on judgment of the Supreme Court in K.K.Velusamy vs. N.Palanisamy, (2011) 11 SCC 275 and judgment of a Division Bench of this court in Arb Inc vs. United India Insurance Company Limited & Ors. in FAO(OS) 398/2015 dated 11.8.2015.

9. The order sheets placed on record by the respondent/applicant show what has already been recorded by this court when passing the order dated

17.10.2016, namely, that on 14.5.2015 PW-4 the plaintiff tendered his evidence by way of affidavit. He was cross-examined by counsel for defendants No.4 and 5 on the said date. On the said date itself the counsel for defendants No.1 to 3/petitioner sought discharge from the case to engage a new counsel and the submission of the petitioner was declined. Hence, as recorded by this court only one opportunity was granted to the petitioner to cross-examine PW-4.

10. It is no doubt true that there has been delay on the part of the petitioner to file an appropriate application seeking permission to cross- examine PW-4. The right to cross-examine PW-4 was declined on 14.5.2015. However, the present application was filed on 4.6.2016 i.e. after a delay of more than one year. However, it may be noted that plaintiff's evidence till date had not been completed. In fact when the impugned order was passed, namely, on 3.9.2016 plaintiff's evidence was continuing.

11. Coming to the legal position the Supreme Court in K.K.Velusamy vs. N.Palanisamy, (supra) on the powers of a court to recall the witnesses under Order 18 Rule 17 CPC or under section 151 CPC noted as follows:-

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)

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 v. State of UP : AIR 1961 SC 218; Manoharlal Chopra v. Seth Hiralal : AIR 1962 SC

527; Arjun Singh v. Mohindra Kumar : AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhay Lal : AIR 1966 SC 1899; Nain Singh v. Koonwarjee : 1970 (1) SCC 732; The Newabganj Sugar Mills Co. Ltd. v. Union of India : AIR 1976 SC 1152; Jaipur Mineral Development Syndicate v. Commissioner of Income Tax, New Delhi : AIR 1977 SC 1348; National Institute of Mental Health and Neuro Sciences v. C Parameshwara : 2005 (2) SCC 256; and Vinod Seth v. 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."

12. Regarding the judgment of the Division Bench in Arb Inc vs. United India Insurance Co.Ltd. & Ors.(supra) it may be noted that it was a case in which the Joint Registrar after granting several opportunities to the plaintiff closed the right of the plaintiff to cross-examine DW-1. The order of the JR was challenged before the Single Judge of this court which appeal was dismissed. Thereafter the plaintiff therein moved an application under Order 18 Rule 17 CPC after a gap of five months. It is in those circumstances that the Division Bench of this court had noted as follows:-

"11. 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. 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.

12....

13. Once the right to cross examine DW-1 has been closed by way of a speaking order and the said order has been confirmed in a chamber appeal, the plaintiff could not have sought the right to cross examine DW-1 by way of an application under order 18 rule 17. Even the application was moved after over five months of the closure of the right to cross examine. This clearly shows the lackadaisical attitude of the plaintiff. Order 18 rule 17 cannot be used by the plaintiff to circumvent the orders passed by the court specifically closing the right to cross examine DW-1. The joint registrar by order dated 23.02.2015 has rightly dismissed the application under order 18 rule 17 and the impugned order dated 17.03.2015 confirming the order of the joint registrar and holding that the application under 18 rule 17, in these circumstances, was not maintainable does not suffer from any infirmity."

13. The legal position that follows above is that in certain circumstances the court can permit a party to re-summon a witness for further cross- examination. There is no absolute bar or prohibition as has been argued by the learned senior counsel appearing for the respondent. No doubt this power has to be exercised sparingly where the facts and circumstances so warrant.

14. I may now come to the facts of the case which are already noted above. As already noted the petitioner had been granted only one opportunity to cross-examine PW4 i.e. on 14.05.2015. On the said date, i.e. on 14.05.2015 the evidence by way of affidavit of PW4 was tendered in court. The counsel for co-defendants No.4 and 5 cross-examined PW4. The petitioner failed to do needful and the right of the petitioner to cross-examine

PW4 was closed on that date itself. No doubt the petitioner took about one year to approach to approach the trial court for recall of PW-4. However, even when the matter came up on 17.10.2016 before this court, the evidence of plaintiff had not concluded before the trial court. It was in these facts that this court vide order dated 17.10.2016 had granted limited relief to the petitioner to recall PW4 for cross-examination.

15. In the light of the said factual circumstances which are clear from the record, in my opinion, there are no reasons to recall the order of this court dated 17.10.2016.

16. I have given a detailed hearing to the learned senior counsel appearing for the respondent on two days. I do not find any grounds raised by the learned senior counsel which would warrant recall of order dated 17.10.2016. Present application is accordingly dismissed.

(JAYANT NATH) JUDGE APRIL 18, 2017/n