Through Its General Secretary ... vs (By Sh. Sanjeev Bhushan
2021 Latest Caselaw 5667 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                 ON THE 10TH DAY OF DECEMBER, 2021
                                BEFORE
              HON'BLE MR. JUSTICE VIVEK SINGH THAKUR




                                                            .

                    CIVIL REVISION NO.63 OF 2020
    Between
    COMMUNIST PARTY OF INDIA (MARXIST)





    THROUGH ITS GENERAL SECRETARY NO.9
    BAWA BUILDING, BAWA ESTATE
    THE MALL , SHIMLA-3
    HIMACHAL PRADESH                                 .....PETITIONER





    (BY SH. SANJEEV BHUSHAN, SENIOR ADVOCATE,
    WITH MR. RAKESH CHAUHAN, ADVOCATE)
    AND
    BAWA JANG BAHADUR

    S/O LATE BAWA RATTAN SINGH BAHADUR

    R/O BAWA BUILDING, BAWA ESTATE, SHIMLA-3
    HIMACHAL PRADESH.                    ....RESPONDENT
    (BY SH. PANKAJ CHAUHAN, ADVOCATE )
    Reserved on       : October 6, 2021



    Decided on        : December 10, 2021
    Whether approved for reporting? Yes.




          This petition coming on for pronouncement this day, the





    Court delivered the following:
                            JUDGMENT

Petitioner (hereinafter referred to as 'defendant')

has approached this Court, invoking provisions of Section 115

of the Code of Civil Procedure (hereinafter referred to as

'CPC'), assailing order dated 30.9.2020, passed by Senior Civil

Judge, Court No.1, Shimla, in Case No.9-1 of 17/15, whereby

CR No.63/2020 ...2...

application filed by defendant, under Order 18 Rule 17 CPC,

for recalling the witness, has been dismissed.

2. Present petition has been filed on the ground that,

.

by passing the impugned order, the Court below, in fact, has

decreed the suit by giving detailed finding on merit of the suit,

instead it ought to have limited its finding to the merits of the

application, and it has also ignored the fact that the

documents sought to be put to plaintiff, by way of cross-

examination, are very relevant for just adjudication of the

case and such necessity warrants to take on record such

documents and put the same to the plaintiff for the purpose of

cross-examination, at any time, subject to provisions of Order

18 Rule 17 CPC. It has been contended that there is no delay

in placing on record the documents, existence whereof came

in the knowledge of defendant on 28.3.2019 and, therefore, it

cannot be concluded that placing on record such documents

was intentionally delayed or the same was a tactic for

prolonging the trial. According to the defendant, the Sale

Certificate, issued under Rule 90(15) qua Property No.245/4,

as was required to be adduced, is a relevant document and

the plaintiff is required to be confronted with the recitals of

the same, but the Court below has completely ignored such

necessity for just adjudication of the controversy involved in

the suit. Lastly, it has been contended that the document

CR No.63/2020 ...3...

proposed to be placed on record in evidence is main

document, having bearing on the claim of plaintiff, being Sale

Certificate, and, therefore, it was required to be brought on

.

record by the plaintiff but on failure of the plaintiff, the

defendant intends to place and prove such document on

record through cross-examination of plaintiff, but the trial

Court has committed an irregularity by rejecting prayer of the

defendant.

3. Learned counsel for the defendant has submitted

that the power under Order 18 Rule 17 CPC can be exercised

even after closure of the evidence, at any stage, by recalling

any witness, who had been examined, for complete and final

adjudication of the case to advance the cause of justice.

4. Plaintiff has opposed the claim of the defendant

on the ground that the defendant is adopting all techniques

for prolonging adjudication and determination of the suit as

the defendant has availed nine opportunities to conclude its

evidence and, to further prolong the proceeding, at the time

of final opportunity granted for arguments, has moved

application under Order 18 Rule 17 CPC just to reset the clock

of the case back, despite the fact that on earlier occasion also

right to file defence/ written statement on behalf of defendant

was struck down by the Court on account of unexplained

delay, and at that time on interference of this High Court three

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weeks additional time to file written statement was granted to

the defendant on 31.3.2016 and now once again defendant is

trying to invoke jurisdiction of this Court to prolong the

.

matter.

5. It has also been contended on behalf of the

plaintiff that document, proposed to be placed on record in

evidence, is neither original document nor relevant for

adjudication of the controversy involved in the present case

and, therefore, for the reasons assigned by the trial Court,

passing of the impugned order has been justified.

6. To substantiate the plea taken by the plaintiff,

learned counsel for the plaintiff has relied upon Vadiraj

Naggappa Vernekar (Dead) through LRs v. Sharadchandra

Prabhakar Gogate, (2009) 4 SCC 410; and a decision of this

High Court in Tilak Raj v. Rajinder Sood, (1026) ILR(HP) 1580.

7. It is settled law of the land that in exercise of

power under Section 115 CPC, the High Court has limited

power to interfere on the ground of illegality, irregularity or

perversity committed by the Court below. An order can also

be interfered to have been passed in excessive exercise of the

jurisdiction or failure to exercise jurisdiction.

8. Perusal of Order 18 Rule 17 CPC and judgments,

referred supra, depict that main purpose of this Rule is to

enable the Court, while trying a suit, to clarify any doubts

CR No.63/2020 ...5...

which it may have with regard to evidence led by the parties,

and that this provision is not intended to be used to fill up

omission in evidence of the witness which has already been

.

examined, as the power under Order 18 Rule 17 is

discretionary and ought to be exercised with greatest care

and only in exceptional circumstances as the Court ought not

to recall a witness at the instance of party in order to fill up a

lacuna in the evidence already adduced.

9. Undoubtedly, Court has discretion to recall a

witness at any time in order to clarify any doubt for complete

and final adjudication of the suit. In present case, in plaint,

plaintiff has set up his claim of ownership on the basis of Sale

Certificate dated 1.12.1989, with respect to Property

No.264/4, known as Melrose, comprising Khasra Nos.808/580,

581/1 and 794/581/1 min. To substantiate the plea, the

plaintiff has placed on record Deed of Conveyance issued

under Rule 91(8), exhibited as Ex.PW-1/D, made on 1.12.1989

between President of India and the plaintiff, whereby Property

No.264/4, referred supra, was sold to plaintiff and this

Conveyance has been signed by Naib Tehsildar (Sales)-cum-

Managing Officer, Shimla, whereas the document proposed to

be placed on record, by the defendant, by putting it to the

plaintiff in cross-examination, is photocopy of a document

stated to be Certificate of Sale (Freehold Properties) under

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Rule 90(15), wherein it has been stated that Shri B.R. Singh

was the highest bidder for acquiring the property mentioned

in Schedule and was declared purchaser of the said property

.

with effect from 16.2.1957. In this document, in Schedule,

property has been identified as 245/4, Melrose Upper Kaithu,

Shimla. This photocopy has several blank columns. This

Certificate of Sale does not appear to have been issued at any

point of time but appears to be a rough work which may or

may not have culminated into Certificate of Sale as the last

line stating that the said document was given under Hand and

Seal of some office is blank and also it does not contain details

of office as well as signature, name and designation of the

Officer certifying and issuing the Certificate. The property of

the suit is Evacuee Property No.264/4, whereas property

mentioned in Certificate of Sale proposed to be brought on

record is 245/4.

10. Other documents proposed to be placed on

record, are (i) copy of statement, dated 4.8.1986, stated to be

made by the plaintiff in some proceedings before Manager

(Sales) admitting to have acquired Property No.245/4 in open

auction; and (ii) a copy of order passed by District Rent &

Managing Officer, Ambala, dated 29.5.1959, in which B.R.

Singh, Manorama Rattan Singh and Dulhano Mal have been

shown to be owner. The property in reference in the above

CR No.63/2020 ...7...

referred statement of plaintiff made before the Manager

(Sales) on 4.8.1986 and Certificate issued by the District Rent

& Managing Officer, Ambala pertains to the property identified

.

as Melrose 245/4, which is not subject matter of the present

suit.

11. Therefore, the documents and statement of the

plaintiff sought to be placed on record by recalling the plaintiff

for cross-examination to put these documents to him, are not

relevant to the lis of the suit being not connected to the suit

property in any manner and, therefore, finding returned by

the trial Court that these documents are not relevant for the

present case in no manner irregular, illegal or perverse.

12. Trial Court has found, and rightly so, that the

documents proposed to be placed on record in evidence by

putting the same to the plaintiff in his cross-examination after

recalling him, are not relevant for adjudication of the present

suit. Therefore, trial Court has rightly dismissed the

application of the defendant as these documents are not

necessary for adjudication of the claim of the parties in the

suit and, thus, there is no necessity to recall the plaintiff for

cross-examination.

13. As discussed supra, existence of the documents

does not create any doubt with regard to evidence led by the

parties and, therefore, conclusion of the trial Court is neither

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irregular nor illegal or perverse and, thus, does not warrant

any interference and it is not a case of exercise of power

beyond jurisdiction or failure to exercise jurisdiction vested in

.

the Court. Therefore, application under Order 18 Rule 17 CPC

has been rightly rejected by the Court below, following the

well established principle with respect to invocation of power

by the Court under this provision.

In view of the aforesaid, petition is dismissed.

Pending application(s), if any, also stands disposed of.

                                           ( Vivek Singh Thakur )

    December 10, 2021(sd)                           Judge.