K.Venkatesh vs G.Yellappa
2022 Latest Caselaw 797 Tel

            THE HONOURABLE JUSTICE G. SRI DEVI

                       C.R.P.No.1914 OF 2021
JUDGMENT:

This civil revision petition is directed against the order dated

25.11.2021 in I.A.No.316 of 2021 in O.S.No.5 of 2012, on the file of

the Senior Civil Judge, Narayanpet, wherein the said application filed

by the revision petitioner herein, who is plaintiff in the suit, to reopen

the plaintiff's side evidence, was dismissed.

2. Heard the learned counsel for the revision petitioner and the

learned counsel for the respondents. Perused the record.

3. The revision petitioner herein filed the suit for declaration

of title. The plaintiff's side evidence was closed on 10.08.2018

and defendants' side evidence was closed on 15.11.2021 and the

matter is posted for arguments. At that stage, the plaintiff

filed I.A.No.316 of 2021 in O.S.No.5 of 2012 seeking to reopen

the plaintiff's side evidence. The learned trial Judge dismissed the

said application. Aggrieved by the same, the plaintiff filed the

present revision petition.

4. Learned counsel for the revision petitioner contends that the

order of the court below is contrary to law, perverse and vitiated by

illegalities touching upon the jurisdiction of the Hon'ble Court; that

the court below ought to have appreciated the submissions of revision

petitioner for reopening of evidence for the purpose of examining his

vendor, who is a crucial and necessary witness; and that no prejudice

would be caused to any of the parties if the plaintiff's side evidence is

reopened. He prayed for setting aside the impugned order.

5. On the other hand, learned counsel for the respondents contends

that the order passed by the court below is well within the legal

framework and there is no need to interfere with the same. In support

of her contentions, learned counsel for the respondents has relied upon

a decision of the Apex Court in BAGAI CONSTRUCTION THR.

ITS PROPRIETOR MR. LALIT BAGAI v. GUPTA BUILDING

MATERIAL STORE1 and a decision of this court in GOLLU

SATYAVATHI AND ORS., v. KILAPARTHI APPARAO AND

ORS2. He prayed for sustaining the order of the court below.

2013(4) ALD 3

2018(2) ALD 58

6. In BAGAI CONSTRUCTION's case (1 supra), the Hon'ble

Supreme referred to the decision in VADIRAJ NAGGAPPA

VERNEKAR (DEAD) THROUGH L.Rs. v. SHARADCHANDRA

PRABHAKAR GOGATE3, wherein it was held as under:

In our view, 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 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.

xxxxx xxxxx

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.

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, but as indicated hereinabove, such power is to

(2009) SCC 410

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.

It was further held as follows:

"After change of various provisions by way of amendment in the Code of Civil Procedure, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 Code of Civil Procedure".

7. In GOLLU SATYAVATHI's case (2 supra), self-same issue

has come up for consideration and this court held as under:

"The Court also observed that under Order XVIII C.P.C., the parties have to take every care to produce all the witnesses and that, having failed to produce the witnesses before the evidence on the plaintiff's side was closed, the present application filed belatedly, cannot be allowed. Under Order XVIII Rule 2, on the day fixed for hearing of the suit or on any other date to which the hearing is adjourned, the party having the right to begin, shall state its case and produce any evidence in support of the issues which he is bound to prove. It is implied from this provision that at the commencement of trial, the party has to be ready with his witnesses, so that their examination will go on till it is completed unhindered. It has now become a practice that the plaintiff or the defendant comes out with requests, much after closing their side's evidence, by pleading some reason or the other, for re-opening the evidence. Though fair amount of discretion is vested in the Courts to consider such requests, unless strong reasons are pleaded and the Court is satisfied with such reasons, it is not desirable to re-open the evidence, merely on the parties making such requests. It is needless to observe that the suits which are kept pending for years, would get further delayed if the Courts accept requests for re-opening of evidence, for the mere asking, without the party making out a strong case for such re-opening".

8. In the present case, at para 10 of the impugned order, the court

below held as follows:

"Hence in this case when the petitioner evidence was closed on 10.08.2018, the petitioner filed present petition on 17.11.2021 for reopening their evidence which was closed on 10.08.2018 after a lapse of 3 years 3 months 7 days i.e., on 17.11.2021, as such law will not assist those who are careless of their right, in order to claim ones right the petitioner must be watchful of and careful of using their rights are entitled to the benefit of law. Law confers rights on those persons who are vigilant of their rights. Further a person who kept mum during the statutory period, cannot clevis for the enforcement of right after the statutory limitation, then the petitioner filed petition under Section 151 CPC., without assigning proper explanation for each day delay, so, at that stage the scope of using inherent powers this court does not arise. Therefore basing on maxim 'vitilantibus non dormientibus jura subveniunt'. The petitioner is not entitled to reopen the suit which was coming for arguments"

9. A perusal of the record and as rightly contended by learned

counsel for the respondents, the application seeking to reopen the

evidence on plaintiff's side is filed only to further protract the matter

and to fill up the lacunae and defects in the suit and that the revision

petitioner has not assigned any valid or sufficient grounds to reopen

the evidence on the plaintiff's side. Though the revision petitioner

has raised a ground in the revision to the effect that he purchased the

property under a registered sale deed from his vendors and the

purpose of reopening the plaintiff's side evidence is only to examine

one of the vendors, but the said plea has not been taken by him in the

affidavit filed in support of I.A.No.316 of 2021 before the court

below. The revision petitioner has simply stated that examination of

P.W.1 is not sufficient and reopening of the plaintiff's side evidence

is very essential, since the suit is filed for declaration of title, recovery

of possession and for mandatory injunction. As rightly observed

by the court below, the plaintiff has slept over his rights for a period

of more than three years when the suit was posted for arguments.

Further, the suit is filed for declaration of title etc. Leading of further

evidence through the proposed witness may not have any relevance to

the suit. The practice of filing some application or the other after the

matter reached the stage of arguments, thereby resulting in protraction

of the litigation and delaying the disposal of the suit, has been

deprecated by this Court on many occasions.

10. Further, in the light of the judgments relied on by learned

counsel for the respondents and on a careful consideration of the facts

of the case and the reasons assigned by the court below, I do not find

any reason to interfere with the impugned order passed by the court

below in exercise of supervisory jurisdiction under Article 227 of the

Constitution of India. The impugned order dismissing the application

filed by the plaintiff does not, therefore, call for any interference.

There are no merits in the civil revision petition.

11. The civil revision petition is, accordingly, dismissed. There

shall be no order as to costs.

12. Pending miscellaneous petitions, if any, stand closed.

____________________ JUSTICE G.SRI DEVI Date: 21.02.2022 Lrkm