Madras High Court
A.S.Kameswari vs Sri Krishna Tiles And Potteries ... on 22 April, 2021
C.R.P.(P.D).No. 905 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.04.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD) No.905 of 2018
and CMP No.4915 of 2018
A.S.Kameswari
alias Manjula Venkatakrishnan ... Petitioner
Vs.
1.Sri Krishna Tiles and Potteries (Madras) Pvt.Ltd.,
“Kumara Vijayam”, Flat No.A-1, 99,
Royapettah High Road,
Chennai – 600 014.
2.N.Kalavathy
3.A.R.Santhanakrishnan
4.Radhika Santhanakrishnan
5.Ajit Santhanakrishnan Ranganthan
Rajagopalan (died)
6.A.K.Muthuswamy
7.A.K.Shankar Prasad
8.S.Krithika
9.S.Srinivasan
10.A.Sankaranarayanan
11.A.R.Chandrika
12.S.Ananth
13.Arunarajan
14.A.R.Lakshmi
15.R.Muthukrishnan
1/14
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C.R.P.(P.D).No. 905 of 2018
16.R.Raghunandan
17.B.Ramamoorthy
18.R.Shanthi
19.R.Sudha
20.S.Sriram
21.S.Sridhar
22.Umapandian
23.Oriental Bank of Commerce
No.63, Dr.R.K.Salai, Chennai – 4.
24.Rohini Holdings Private Limited
No.67, Chamiers Road, R.A.Puram,
Chennai – 28. ... Respondents
Prayer :- Civil Revision Petition is filed under Article 227 of Code of Civil
Procedure, to set aside the fair and decreetal order dated 12.01.2018 made
in I.A.No.149 of 2017 in O.S.No.1851 of 2013 on the file of the XVIII
Additional Judge, City Civil Court, Chennai.
For Petitioner : Mr.H.Karthik Seshadri
For R1, R3 & R4 : Mr.V.Kuberan
for M/s.Rank Associates
For R2 & R5 : Notice served
For R6 to 21 and R23 : Given up
For R22 : Mr.S.Thankasivan
ORDER
This Civil Revision Petition is filed against the the fair and
decreetal order dated 12.01.2018 made in I.A.No.149 of 2017 in
O.S.No.1851 of 2013 on the file of the XVIII Additional Judge, City Civil
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C.R.P.(P.D).No. 905 of 2018
Court, Chennai, thereby allowing the petition to re-open the evidence of the
defendants 1, 6 to 10 to let in evidence.
2. The revision petitioner is the plaintiff and the respondents 1 to
5 are the defendants 1, 6 to 10. The petitioner filed a suit for declaration
and mandatory injunction. The suit was originally filed before this Court in
the year 2005 and thereafter it was transferred to the file of the XVIII
Additional Judge, City Civil Court, Chennai and renumbered as O.S.1851 of
2013. When the matter was posted for arguments, the respondents 1 to 5
filed a petition to re-open the evidence to let in evidence and the same was
allowed. Aggrieved by the same, the present Civil Revision Petition is
filed.
3. The learned counsel for the petitioner would submit that
originally the suit was filed in the year 2005 before this Court in
C.S.No.288 of 2005 for declaration and mandatory injunction.
Subsequently, it was transferred to the file of the XVIII Additional Judge,
City Civil Court, Chennai and renumbered as O.S.No.1851 of 2013.
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C.R.P.(P.D).No. 905 of 2018
4. P.W.1 was examined in chief and the suit was posted for cross-
examination of the respondents 1 to 5 herein on 15.02.2016. After closing
the evidence of the petitioner's, the suit was posted for defendants side
evidence. The Trial Court had given several opportunities to the
respondents 1 to 5 for their evidence on various occasions. Finally, when
the suit was posted for evidence on 28.09.2016, the respondents 1 to 5
herein called absent and no representation was made seeking time. Since,
already sufficient opportunities were given for their evidence and they are
not interested to let in evidence on their side, evidence was closed and suit
was posted for arguments on 10.10.2017. Even at that stage, the suit was
adjourned on two occasions for arguments. At that juncture, the
respondents 1 to 5 filed the present petition on 10.11.2017 to re-open their
evidence to let in evidence on their side under Order 18 Rule 17 read with
151 of CPC. Therefore, the respondents did not approach the Court with
clean hands and only to drag on the proceedings they filed a petition to re-
open the evidence. The petition itself is not maintainable, since, they did
not let in evidence on their side and only for re-opening the evidence of the
respondents 1 to 6 herein, the present petition had been filed.
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C.R.P.(P.D).No. 905 of 2018
5. Without considering the same, the Court below mechanically
allowed the petition only for giving an opportunity to let in evidence. In
support of his contention, he also relied upon the judgment reported in 2011
11 SCC 275 in the case of K.K.Velusamy Vs.N.Palanisamy
6. Per contra, the learned counsel for the respondents submitted
that admittedly the respondents did not let in evidence. The petitioners filed
a suit for substantial relief and as such, ought to have let in evidence on
their side to defend the suit filed by the petitioner in a proper manner. In
fact, the prayers sought for in the suit itself are not maintainable. The
judgment cited by the petitioner is not at all applicable to the case on hand
and only applicable to the case where witnesses were re-called. In the case
on hand, the respondents 1 to 5 may be given one more opportunity to let in
their evidence. Therefore, the Court below rightly allowed the petition and
the respondents 1 to 5 had not let in evidence at any point of time. The
respondents 1 to 5 delayed the suit, though the suit was filed in the year
2005 and subsequently it was transferred to the XVIII Additional Judge,
City Civil Court, Chennai, but trial commenced only in the year 2016. The
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C.R.P.(P.D).No. 905 of 2018
plaintiff's side evidence was closed only on 15.02.2016 and immediately,
they filed a petition to re-call their evidence. Therefore, he prayed for
dismissal of the Civil Revision Petition.
7. Heard, Mr.H.Karthik Seshadri, learned counsel appearing for
the petitioner, Mr.V.Kuberan, learned counsel appearing for the respondents
1, 3 & 4 and Mr.S.Thankasivan, learned counsel appearing for the 22 nd
respondent and perused the materials available on record.
8. The petitioners are the plaintiffs and the respondents 1 to 5 are
the defendants. Originally, the suit was filed in the year 2005 before the
Court in C.S.No.288 of 2005 for declaration and mandatory injunction and
subsequently it was transferred to the file of the XVIII Additional Judge,
City Civil Court, Chennai and renumbered as O.S.No.1851 of 2013. The
Trial commenced in the year 2016. The evidence of the plaintiff was closed
on 15.02.2016. Thereafter, the suit was posted for defendant's side
evidence. The suit was adjourned at the request of the respondents 1 to 5
herein on various dates viz., 28.06.2016, 12.07.2016, 22.07.2016,
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C.R.P.(P.D).No. 905 of 2018
01.08.2016, 08.08.2016, 18.08.2016, 30.08.2016, 08.09.2016, 17.09.2016,
23.09.2016, and finally adjourned to 28.09.2016 for their evidence. On
28.09.2016, the respondents 1 to 5 did not let in their evidence and as such,
the evidence was dispensed under Order XVII Rule (2)(e) of the Civil
Procedure Code. Thereafter, the suit was posted for arguments on
10.10.2017. In fact, the suit was also adjourned for two hearings on
20.10.2017 and 30.10.2017. Even then, the respondents 1 to 5 failed
comeforward to re-open to let in their evidence. Only on 10.11.2017, they
filed a petition to re-open for their evidence.
9. The learned counsel for the petitioner rightly pointed out that
the petition was filed under Order 18 Rule 17 read with 151 of the Civil
Procedure Code to re-open their evidence. Admittedly, the respondents 1 to
5 did not let in their evidence and as such, no question to re-open their
evidence. In this regard, the learned counsel for the petitioner relied upon
the Judgment reported in 2011 11 SCC 275 in the case of K.K.Velusamy
Vs.N.Palanisamy, in which this Court held as follows :
“8. Order 18 Rule 17 of the Code enables the
court, at any stage of a suit, to recall any witness who has
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C.R.P.(P.D).No. 905 of 2018
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 witess 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 -
2009 (4) SCC 410].
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
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C.R.P.(P.D).No. 905 of 2018
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
vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs.
Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra
Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills
(P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs.
Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills
Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur
Mineral Development Syndicate vs. Commissioner of Income
Tax, New Delhi - AIR 1977 SC 1348; National Institute of
Mental Health & Neuro Sciences vs. C Parameshwara - 2005
(2) SCC 256; and Vinod Seth vs. 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
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C.R.P.(P.D).No. 905 of 2018
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
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C.R.P.(P.D).No. 905 of 2018
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.
10. The Hon'ble Supreme Court of India held that to re-call any
evidence 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 grounds it may have any evidence letting by the parties.
11. In the case on hand, admittedly the respondents 1 to 5 did not
let in their evidence and as such, there is no question of re-calling their
evidence. Further, the power under Section 151 or Order 18 Rule 17 of the
Civil Procedure Code is not intended to be used routinely, merely for
asking. If so used, it will defeat the very purpose of various amendments to
the Code to expedite trial. But where the application is found to be
bonafide and where the additional evidence, oral and documentary, will
assist the Court to clarify the evidence on the issues and will assist in
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C.R.P.(P.D).No. 905 of 2018
rendering justice, and the Court is satisfied that non-production earlier was
for valid and sufficient reasons, the Court may exercise its discretion to
re-call the witnesses or permit the fresh evidence. Therefore, the Court
below ought not to have allowed the petition to re-open for letting the
respondents 1 to 5 evidence mechanically. As sought prayer, sufficient
opportunities were given to the respondents to let in their evidence. When
the suit was posted for arguments, the respondents 1 to 5 filed a petition to
re-open their evidence. Admittedly they did not let in their evidence earlier
and only to let in their evidence they filed a petition to re-open their
evidence. Therefore, the order passed by the Court below is perverse and
illegal.
12. Accordingly, the order 12.01.2018 made in I.A.No.149 of
2017 in O.S.No.1851 of 2013 on the file of the XVIII Additional Judge,
City Civil Court, Chennai, is hereby set aside. The Trial Court is directed to
dispose of the suit within a period of twelve months from the date of receipt
of a copy of this order.
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C.R.P.(P.D).No. 905 of 2018
13. With the above directions, the Civil Revision Petition stands
allowed. Consequently, connected miscellaneous petition is closed. No
costs.
22.04.2021
Lpp
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
1. The XVIII Additional Judge,
City Civil Court, Chennai.
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.R.P.(P.D).No. 905 of 2018
G.K.ILANTHIRAIYAN.J,
Lpp
C.R.P.(PD) No. 905 of 2018
and CMP No.4915 of 2018
22.04.2021
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