Manipur High Court
Dr. Lallukhum Fimate vs Dr. Chaltonlien Amo on 17 June, 2021
KABORAMB Page 1 of 9
AM LARSON
Digitally signed by
KABORAMBAM LARSON
Date: 2021.06.21 IN THE HIGH COURT OF MANIPUR
12:49:36 +05'30' AT IMPHAL
MC(Election Petition) No.2 of 2021
in Election Petition No.7 of 2017
Dr. Lallukhum Fimate, aged about 67 years of aged, S/o. (L)
Rev. HL. Ngura, a permanent resident of Parbung, Pherzol
District, Manipur and at present residingEbenezer Villa
Langol, near Shija Hospital, P.O. & P.S. Lamphel, Imphal
West, Manipur-795004
....... Applicant/s
- Versus -
1. Dr. Chaltonlien Amo, Member of the Legislative Assembly,
Manipur from the 55-Tipaimukh (ST) Assembly (a Returned
Candidate of the INC in the recently concluded election);
2. Mr. Ngursanglur Sanate aged about 42 years, S/o. (L)
Ngurdinglien Sanate, near Light House, Churachandpur,
P.O. & P.S. and district Churachandpur;
3. Mr. Ngurrivung aged about 33 years S/o (L) Ngurkhawsiem
C/o Lalremlieani Hmar, House No.A-12, J.L. High School
Veng, Khatla, Aizawl, Mizoram-796001;
4. Mrs. Thangthatling Sanate aged about 59 years, w/o.d/o.
Hranglienkhum Sinate r/o.Khomawi village, P.O. & District
Churachandpur;
MC(El.Petn.) No.2 of 2021
Ref:- Election Petition No.7 of 2017
Page 2 of 9
5. The Returning Officer, 55-Tipaimukh (ST) Assembly
Constituency, Churachandpur of 11 th Manipur Legislative
Assembly Election, 2017;
6. The Presiding Officer, Patpuihmun Polling Station, 55-
Tipaimukh (ST) Assembly Constituency, Churachandpur;
7. The Presiding Officer, Phulpui Polling Station, 55-
Tipaimukh (ST) Assembly Constituency, Churachandpur.
.... Respondent/s
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Applicant/s : Mr. Serto T. Kom, Advocate
For the Respondent/s : Mr. N. Ibotombi, Senior Advocate
Date of Hearing : 09.04.2021
Judgment & Order : 17.06.2021
JUDGMENT & ORDER
(CAV)
[1] This petition has been filed by the petitioner under Order
18, Rule 17 read with Section 151 C.P.C. praying to recall P.W.2
alleging that P.W.2 has made two different versions/statements in
respect to his signature in his examination in chief filed in form of an
affidavit and there are contradictions in his own statement. Therefore,
MC(El.Petn.) No.2 of 2021
Ref:- Election Petition No.7 of 2017
to get it his contradictory statements clarified, P.W. No.2 has to be
recalled.
[2] The contesting first respondent filed objection stating
that the statement given on oath before this Court by the P.W.2 are
clear cut statement and does not need any clarification and the
petitioner is trying to force P.W.2 to change the statement given by him
by recalling him therein to favour the petitioner, which is not permitted
in the eye of law.
[3] The learned counsel for the petitioner submitted that
while P.W.2 was examined in chief on 09.12.2020, he identified his
signature on the chief-examination affirmed on 04.11.2019, however,
during cross-examination of the first respondent dated 18.1.2021, when
the learned counsel for the first respondent questioned the signature
found at page 4 of his chief-examination, P.W.2 stated that the
signature is not his signature and that if a clarification is not made by
P.W.2, the aforesaid statements will bring about in the mind of this
Court in the process of delivering justice.
[4] The learned counsel for the petitioner further submitted
that P.W.2 needs to clarify his answer regarding his address given in
MC(El.Petn.) No.2 of 2021
Ref:- Election Petition No.7 of 2017
the cross-examination and for that purpose also P.W.2 has to be
recalled and examined.
[5] Placing reliance upon the decision of the Hon'ble
Supreme Court in the case of Vadiraj Nagappa Vernekar v.
Sharadchandra Probhakar Gogate, (2009) 4 SCC 410, the learned
counsel submitted that under Order 18, Rule 17 CPC, the Court may
recall and examine witnesses at any stage of a suit and that the main
purpose of the said provision is to enable the Court to clarify any
doubts which it may have with regard to the evidence led by the parties.
[6] Per contra, the learned counsel for the first respondent
submitted that during examination P.W.2 has given clear cut statement
before this Court on oath and the same does not require any
clarification and therefore, there is no necessity to recall P.W.2 Placing
reliance upon the decision of the Hon'ble Supreme Court in the case of
Ram Rati v. Mange Ram and others, (2016) 11 SCC 296, the learned
counsel submitted that the power under the provisions of Order 18,
Rule 17 CPC 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 and that the said power is
MC(El.Petn.) No.2 of 2021
Ref:- Election Petition No.7 of 2017
not intended to be used to fill up omissions in the evidence of a witness
who has already been examined.
[7] This Court considered the submissions raised by the
learned counsel for the parties and also perused the materials available
on record.
[8] According to the petitioner, on 09.12.2020, P.W.2-
Remroutsang @ Remruotsang was examined in chief and in his proof
affidavit, affirmed on 04.11.2019, P.W.2 stated that he is a permanent
resident of Patpuihmun, Pherzol District and at present residing at
Demdei/Damdiei, P.O. Parbung, Pherzol District. P.W.2 identified the
affidavit dated 04.11.2019 and also identified the signature on the
examination in chief filed in the form of an affidavit as his signature and
further stated that the said affidavit was sworn before the Oath
Commissioner at Cheirap Court Complex and accordingly, the chief-
examination of P.W.2 was completed. Subsequently, when the matter
was taken up on 18.1.2021 for cross-examination of P.W.2, to the
question of the first respondent's count, P.W.2 answered in contrary to
his own statement. Since P.W.2 made two different statements in
respect of his signature in his examination in chief, he has to be
recalled for clarification. Thus, the petitioner seek to recall of P.W. 2
MC(El.Petn.) No.2 of 2021
Ref:- Election Petition No.7 of 2017
mainly to get clarification of the signature of P.W.2 found in the chief-
examination and his address.
[9] When P.W.2 has made two different statements in
respect of his signature and his residence during examination in chief
and cross-examination, it is his categorical statement on oath and the
same cannot be clarified at the insistence of the petitioner herein by
recalling P.W.2. For each and every question and different statements,
there is no necessity for recalling a witness. If the said practice is
adopted, it will never end the examination of witnesses.
[10] It is true that the Court may at any stage of a suit recall
any witness who has been examined and may put such questions to
him as the Court thinks fit. Here, the purpose for which the petitioner
seeks recall of P.W.2 is unwarranted, as the statement of P.W.2 is
categorical on oath.
[11] In the decision in Vadiraj Nagappa Vernekar (supra)
relied upon by the learned counsel for the petitioner, the Hon'ble
Supreme Court held that provisions of Order 18, Rule 17 CPC does not
intended to be used to fill up omissions in the evidence of a witness
already examined.
MC(El.Petn.) No.2 of 2021
Ref:- Election Petition No.7 of 2017
[12] In Ram Rati (supra), relied on by the learned counsel for
the first respondent, the Hon'ble Supreme Court held:
"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 motu, 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."
[13] In the instant case, as stated supra, the clarification
sought by the petitioner by recalling P.W.2 is really to fill up omissions
in the evidence of a witness. When P.W.2 on oath has given
categorical evidence, wither same version or on two different versions,
there is no necessity to recall him again for clarification.
[14] Though the provisions of Order 18, Rule 17 CPC have
been interpreted to include applications to be filed by the parties for
recall of witnesses, the main purpose of the said rule is to enable the
MC(El.Petn.) No.2 of 2021
Ref:- Election Petition No.7 of 2017
Court, while trying a suit, to clarify any doubts 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 witness
who has already been examined. The power under the provisions of
Order 18, Rule 17 CPC is to be sparingly exercised and in appropriate
cases and not as a general rule merely on the ground that his recall
and re-examination would not cause any prejudice to the parties. That
is not the scheme or intention of Order 18, Rule 17 CPC.
[15] It is now well settled that the power to recall any witness
under Order 18, Rule 17 CPC can be exercised by the Court either on
its own motion or on an application filed by any of the parties to the suit.
Such power is to be invoked not to fill up the lacunae in the evidence of
the witness which has already been recorded but to clear any ambiguity
that may have arisen during the course of his examination.
[16] Admittedly, in the case on hand, in order to fill up the
lacunae in the evidence of P.W.2, the petitioner has filed the instant
petition to recall the P.W.2, which is not permissible in law. That apart,
to protract the proceedings, the petitioner has filed the petitioner and as
such no clarification needs by recalling P.W.2. Since the legal position
under Order 18, Rule 17 CPC read with Section 151 CPC being thus
MC(El.Petn.) No.2 of 2021
Ref:- Election Petition No.7 of 2017
very clear, the petitioner is not entitled to seek leave of this Court to
recall P.W.2 to get it clarified the two different statements made by him
in his examination and therefore, the petition filed by the petitioner is
liable to be dismissed as devoid of merits.
[17] In the result, the petition is dismissed. No costs.
[18] Registry is directed to issue copy of this order to both
the parties through their whatsapp/e-mail.
JUDGE
FR/NFR
-Larson
MC(El.Petn.) No.2 of 2021
Ref:- Election Petition No.7 of 2017
