Gujarat High Court

Yogeshbhai Sundarjibhai Patel vs Dineshbhai Vashrambhai ... on 23 December, 2021

Bench: B.N. Karia

     C/SCA/14920/2021                            ORDER DATED: 23/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14920 of 2021

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                    YOGESHBHAI SUNDARJIBHAI PATEL
                                Versus
                DINESHBHAI VASHRAMBHAI BAMBHAROLIYA
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Appearance:
MR VISHWAS S DAVE(5861) for the Petitioner(s) No. 1,2
MR PJ KANABAR(1416) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
                  Date : 23/12/2021
                   ORAL ORDER

1. By preferring this petition, petitioners have requested to

quash and set aside the order passed below Exh.72 and

Exh.131 in Special Civil Suit No.27 of 2014 pending before

learned Principal Civil Judge, Amreli.

2. Heard learned advocates for the respective parties.

3. Learned advocate for the petitioners has submitted that

the respondent has produced documents at Exhs.69, 70 and

78 during the cross-examination of the petitioners before the

Trial Court, and therefore, the petitioners did not have any

opportunity to file their defence in their reply or chief

examination of deposition. It is further submitted that as no

opportunity was given to the petitioners, an application was

submitted to recall the present respondent to put limited

C/SCA/14920/2021 ORDER DATED: 23/12/2021

questions pertaining to the documents. It is further submitted

that the Trial Court has committed grave error in rejecting the

application below Exhs.72 and 131. It is further submitted

that the said documents were never produced by the

respondent and they are produced in the cross-examination of

the present petitioners and hence, it was necessary for the

petitioners to recall the respondent herein and opportunity

was required to be given by the Trial Court. It is further

submitted that the petitioners are ready and willing to cross-

examine the respondent, within a time bound period if

permission would be granted by this Court. It is further

submitted that the petitioners are deprived of opportunity for

cross-examining the defendants on the documents produced

during the cross-examination of the petitioners. Hence, it was

requested by learned advocate for the petitioners to quash and

set aside the impugned orders passed by the Trial Court and

permit them to cross-examine the respondent by recalling.

4. From the other side, learned advocate appearing for the

respondent vehemently opposed the submissions made by

learned advocate for the petitioners and submitted that while

exercising the discretion, the Trial Court has perfectly

maintained discretion which is to be exercised, keeping in view

C/SCA/14920/2021 ORDER DATED: 23/12/2021

the provisions of Order 18 Rule 17 of the Code of Civil

Procedure (hereinafter referred to as "the CPC" for short) and

appropriate reasons have been assigned while refusing the

prayer made by the present petitioners. It is further submitted

that the order cannot be treated as perverse in any manner. It

is further submitted that the Trial Court has considered at

length the submissions and found that no case is made out

and attempt made by the petitioners is to prolong the matter

which took place during the course of leading evidence. It is

further submitted that this power cannot be exercised in a

routine manner by allowing the party to recall the witness. It

is further submitted that during the cross-examination of the

petitioners, these documents were produced by the

respondent and they are not related to the subject matter of

the suit. Hence, it was requested by learned advocate for the

respondent to dismiss the petition. In support of his

arguments, learned advocate for the respondent has relied

upon the judgment in the case of Renukaben Devidas Patel

Wd/o. Devidas Ratilal Patel Vs. Tushar Devidas Patel

reported in 2019 JX(Guj.) 1087.

5. Having considered the submissions made by learned

advocates for the respective parties and averements made in

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the petition, it appears that the respondent produced certain

documents of another suit by Exhs.69 and 70 during the

cross-examination of the present petitioners (original

defendants). Hence, the petitioner filed an application below

Exh.72 under Order 18 Rule 17 and Section 151 of the CPC

praying to recall the respondent herein/plaintiff for cross-

examination. As the cross-examination of the defendant was

going on, learned Principal Civil Judge, Amreli, vide order

dated 14.06.2018, decided the application Exh.72 after the

cross-examination of the defendant was over. From the record,

it appears that the respondent herein also filed one

application Exh.77 under Order 7 Rule 14 of the CPC praying

to permit to produce certain documents and documentary list

below Exh.78 at the time of cross-examination of the

petitioners in the suit. The said application Exh.77 was

objected by the petitioners by filing their objection can reply

below Exh.80. The Trial Court was pleased to allow the

application Exh.77. The petitioners, being aggrieved by the

said order below Exh.77, preferred Special Civil Application

No.14327 of 2018 before this Court which was rejected vide

order dated 01.11.2018. The present petitioners, being

aggrieved by the said order of this Court, preferred Special

C/SCA/14920/2021 ORDER DATED: 23/12/2021

Leave Petition before the Hon'ble Apex Court which was also

rejected. The respondent produced additional documents

below Exh.78 during the cross-examination of the petitioners.

Admittedly, suit was filed by the respondent herein in the year

2014 and from the beginning, present petitioners being the

defendants tried to prolong the suit. After framing the issues

by the Court, written statement was filed by the present

petitioners in the suit. After completing the evidence of the

plaintiff, right to cross-examination of the petitioner was

closed by the Court as they were not present and closing

pursis was also filed by the plaintiff. At the stage of recording

evidence of the defendant, fresh notice was served to the

defendant, then the defendant appeared before the Court and

requested to permit him to file written statement and open his

right to cross-examine the plaintiff which was allowed by the

Court. At the time of filing written statement by the defendant,

oral evidence of the plaintiff was over. The plaintiff has

disclosed his case when the written statement was filed by the

plaintiff. Cross-examination of the plaintiff was also made by

the defendant. The defendant remained silent at every stage in

the suit and tried to prolong the matter. As submitted by

learned advocate for the respondent, the documents produced

C/SCA/14920/2021 ORDER DATED: 23/12/2021

are not related to subject matter of the suit, and therefore, no

purpose would be served to permit the present petitioners by

allowing his application Exh.72 recalling the respondent

herein for cross-examination, as prayed for. Further, if we

refer the judgment of the Hon'ble Apex Court reported in

2016(11) SCC 296, in which, while dealing with provisions

contained under Order 18 Rule 17 read with Section 151 of

the CPC, the Hon'ble Apex Court has clearly propounded that

the provisions cannot be resorted to, for the purpose filling up

lacuna or omission. The Hon'ble Apex Court has gone to the

extent that no prejudice is caused to either party is also not a

relevant consideration for invoking Rule 17 of the CPC. The

relevant extract contained in this decision reads as under:

"11. The respondent filed the application under Rule 17 read with Section 151 of the CPC invoking the inherent powers of the court to make orders for the ends of justice or to prevent abuse of the process of the court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required

C/SCA/14920/2021 ORDER DATED: 23/12/2021

or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. No prejudice is caused to either party is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground."

"18. The settled legal position under Order 18 Rule 17 read with Section 151 of the CPC, being thus very clear, the impugned orders passed by the trial court as affirmed by the High Court to recall a witness at the instance of the respondent "for further elaboration on the left out points", is wholly impermissible in law."

"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.

"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

C/SCA/14920/2021 ORDER DATED: 23/12/2021

application is found to bebona fideand 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."

6. From the record, this Court is of the opinion that the

petitioner has filed this two applications Exhs.72 and 132

before the Trial Court in order to overcome the lacuna in the

evidence, pleadings. It is not the case of the petitioner that no

adequate opportunity was given. In fact, material placed

shows that the petitioner has filed both the applications after

more than sufficient opportunity had been granted to do to

prove his case. After recording oral evidence of the respondent

herein on 26.03.2018, application Exh.72 was submitted on

14.06.2018 and again, vide application Exh.131, fresh

application was given on 19.10.2019 approximately after a

period of one and half years. To avoid the final proceedings of