RAM RATI Vs. MANGE RAM (D) THR LRS. & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1684 of 2016, Judgment Date: Feb 23, 2016
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1684 OF 2016
(Arising from S.L.P. (C) No. 22141 of 2013)
RAM RATI … APPELLANT (S)
VERSUS
MANGE RAM (D) THROUGH LRS.
AND OTHERS … RESPONDENT (S)
J U D G M E N T
KURIAN, J.:
Leave granted.
Whether a witness can be recalled under Order 18 Rule 17 of The Code of
Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) for further
elaboration of aspects left out in evidence already closed, is the issue
for consideration in this case.
There are two suits filed by the respective parties and pending before the
Tis Hazari Courts at Delhi. Civil Suit No. 43 of 2009 was filed by the
respondents herein for declaration and injunction in respect of the plaint
schedule property. In respect of very same property, the appellant herein
also filed a suit seeking permanent injunction and that suit has been
numbered as Civil Suit No. 44 of 2009. The suits were consolidated for
common trial, on joint request, by order dated 08.12.2007. Suit No. 43 of
2009, with the consent of the parties, was ordered to be tried in the court
where Suit No. 44 of 2009 was pending by order dated 26.09.2005 of the
District Judge, Delhi. Much before that, evidence in Civil Suit No. 44 of
2009 had commenced and the appellant herein had been examined as PW-1 and
the respondents herein had cross-examined PW-1 as well. That evidence was
closed on 16.04.2005. After the consolidation of the two suits, the
respondents herein filed an application on 13.04.2010. We shall extract the
averments made in the said application as under:
“APPLICATION ON BEHALF OF DEFENDANT FOR DISCHARGING THE STATEMENT OF PW-1
AND EXAMINATION OF WITNESS I.E. PW-1 AFRESH UNDER ORDER 18 RULE 17 C.P.C.
READ WITH SECTION 151 C.P.C.
Sir,
The applicant most respectfully submits as under:-
1. That the plaintiff examined PW-1, Sh. Chottu Ram as PW1- on
6.12.2004. His cross examination was concluded on 16.4.2005.
2. That this Hon’ble Court consolidated the present suit with another
suit titled as Mange Ram Vs. Chander Kanta etc. vide its order dated
8.12.2007.
3. That while passing the order of consolidation dated 8.12.2007, this
Hon’ble Court ordered as under:-
“It has been so urged on behalf of both contesting sides that trial in two
cases be conducted commonly and evidence led in either case be read in both
these cases.”
4. The directions or observations of this Hon’ble Court as reproduced
above operates prospectively and not retrospectively.
5. That when the Hon’ble Court ordered that evidence in one case may be
read in evidence in another case, then plaintiff in Mange Ram Vs. Chander
Kanta & Ors. would be deprived of the opportunity of cross examination of
PW-1 which was concluded on 16.4.2005, much prior to the date of order of
consolidation.
6. That as per settled position of law on this point and as per terms of
order of this Hon’ble Court dated 08.12.2007, either the PW-1 be examined
afresh or opportunity to cross examine the PW-1 may be granted to the
applicant/plaintiff in Mange Ram Vs. Chander Kanta & Ors.
It is, therefore, prayed that PW-1 may kindly be examined afresh or
opportunity to cross examine the PW-1 in Ram Rati Vs. Mange Ram etc. may
kindly be granted to the applicant.”
By order dated 15.04.2008 of the Additional District Judge, Delhi in Civil
Suit No. 43 of 2009 filed by the respondents, the suit as against Defendant
Nos. 5 and 6 was rejected and it was held that the plaint did not disclose
any cause of action against them. Defendant No. 5 was the plaintiff in Suit
No. 44 of 2009 and Defendant No. 6 is her husband. That Defendant No. 5 is
the applicant before this Court.
Thus, the only ground taken up in the application filed under Order 18 Rule
17 of the CPC is that after consolidation of the suits, the plaintiff in
Civil Suit No. 43 of 2009 should get an opportunity to cross-examine the PW-
1 (Defendant No. 5 in Civil suit No. 43 of 2009).
It is interesting to note that in the order dated 24.02.2010 passed by the
Additional District Judge in Civil Suit No. 44 of 2009, it has been
observed by the Court that the plaintiff in Civil Suit No. 44 of 2009 is no
more a party to Civil Suit No. 43 of 2009 and the earlier order of
consolidation of suits dated 08.12.2007 was maintained, further clarifying
that the past evidence of plaintiff in Civil Suit No. 44 of 2009, which has
already been recorded, to be treated as the main suit.
We shall extract the order dated 24.02.2010, which reads as follows:
“Since the facts in this suit and suit No. 43/09 are intertwined even
though Plaintiff is no more a party to suit No. 43/09, her claim for
declaration to suit property therein may have reflection on the entitlement
of Plaintiff, therefore, with the consent of both sides, the consolidation
order dated 8.12.2007 is being maintained and suit No. 44/09 where past
evidence of Plaintiff Ram Rati has been recorded is treated as main suit.”
But it has to be noted that the Suit No. 43 of 2009 stands rejected against
that PW-1 (Defendant No.5). Not only that, being a defendant in Suit No. 44
of 2009, PW-1 had been cross-examined also by the respondent herein. What
is lost, if at all it can be termed so, is the opportunity to cross-examine
in the capacity as plaintiff in O.S. No. 43 of 2009. But that suit, as
noted above, had already been rejected as against PW-1 (Defendant No. 5),
appellant herein. Unfortunately, both the courts have taken the view that
the examination of PW-1 in Suit No. 44 of 2009 having taken place prior to
consolidation, the plaintiff in Suit No. 43 of 2009 did not get an
opportunity to cross-examine him.
The trial court, by order dated 18.12.2010, allowed the application filed
by the respondent … “for further elaboration on the left out points by the
parties…”. The High Court, in the impugned order, endorsed the view taken
by the trial court, holding that … “reading the impugned
order shows that the witness has been recalled, if available for further
elaboration on the left out points to both the parties”. Since, the High
Court and trial court have taken a wholly wrong approach in the matter and
against the settled principles of law, it has become necessary for us to
restate the law as well.
Order 18 of CPC deals with hearing of the suit and examination of
witnesses. By an amendment introduced thereunder with effect from
01.02.1977, Rule 17A was introduced permitting production of evidence not
previously known or which could not be produced despite due diligence. It
appears, the amendment only caused unnecessary protraction of the
litigation, and hence, the said provision was omitted by The Code of Civil
Procedure (Amendment) Act, 1999 with effect from 01.07.2002. However, Rule
17 was retained which reads as follows:
“17. Court may recall and examine witness.- The court may at any stage of a
suit recall any witness who has been examined and may (subject to the law
of evidence for the time being in force) put such questions to him as the
court thinks fit.”
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 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.
In Vadiraj Naggappa Vernekar (Dead) Through LRs. v. Sharadchandra Prabhakar
Gogate[1], this principle has been summarized at paragraphs- 25, 28 and 29:
“25. 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.
xxx xxx xxx
28. 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.
29. 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 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.”
In K.K. Velusamy v. N. Palanisamy[2], the principles enunciated in Vadiraj
(supra) have been followed, holding at paragraphs- 9 and 10:
“9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit,
to recall any witness who has 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 witness 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.)
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.”
The rigour under Rule 17, however, does not affect the inherent powers of
the court to pass the required orders for ends of justice to reopen the
evidence for the purpose of further examination or cross-examination or
even for production of fresh evidence. This power can also be exercised at
any stage of the suit, even after closure of evidence. Thus, the inherent
power is the only recourse, as held by this Court in K.K. Velusamy (supra)
at paragraph-11, which reads as follows:
“11. There is no specific provision in the Code enabling the parties to
reopen 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 court 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 reopening 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 invoked in appropriate
cases to reopen 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.”
After surveying the various principles stated by this Court on Section 151
from 1961, in K.K. Velusamy (supra), they have been succinctly summarized
as follows under paragraph-12:
“xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
a) Section 151 is not a substantive provision which creates or confers any
power or jurisdiction on courts. It merely recognises 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
recognises and confirms that if the Code does not expressly or impliedly
cover any particular procedural 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 coextensive 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 by necessary implication exhaust the scope of the power
of the court or the jurisdiction that may be exercised in relation to that
matter, the inherent power cannot be invoked in order to cut across the
powers conferred by the Code or in 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 in 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 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.”
Some good guidance on invocation of Section 151 of the CPC to reopen an
evidence or production of fresh evidence is also available in K.K. Velusamy
(supra). To quote paragraph-14:
“14. The amended provisions of the Code contemplate and expect a trial
court to hear the arguments immediately after the completion of evidence
and then proceed to judgment. Therefore, it was unnecessary to have an
express provision for reopening the evidence to examine a fresh witness or
for recalling any witness for further examination. But if there is a time
gap between the completion of evidence and hearing of the arguments, for
whatsoever reason, and if in that interregnum, a party comes across some
evidence which he could not lay his hands on earlier, or some evidence in
regard to the conduct or action of the other party comes into existence,
the court may in exercise of its inherent power under Section 151 of the
Code, permit the production of such evidence if it is relevant and
necessary in the interest of justice, subject to such terms as the court
may deem fit to impose.”
Vadiraj (supra) and K.K. Velusamy (supra) have also found affirmation by
this Court in Bagai Construction Through its Proprietor Lalit Bagai v.
Gupta Building Material Store[3].
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.
In the above circumstances, the impugned order is set aside and the appeal
is allowed.
We are informed that during the pendency of the appeal, the evidence has
been closed and what remains is only the final arguments. In view of the
above, we direct the trial court to dispose of the suits expeditiously and
preferably within one moth from the date of receipt of a copy of this
order.
There shall be no order as to costs.
……………..……………………J.
(KURIAN JOSEPH)
……………..……………………J.
(ROHINTON FALI NARIMAN)
New Delhi;
February 23, 2016.
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[1] (2009) 4 SCC 410
[2] (2011) 11 SCC 275
[3] (2013) 14 SCC 1
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REPORTABLE