Jehangir Soli Sorabjee v. M/s. Warden and Company (India) Private Limited

6. I have considered the submissions canvassed by the learned counsel appearing for the parties and have gone through the application at Exhibit- 146 as well as the impugned order passed by the Small Causes Court thereon. ___Page No.4 of 11___

7. Deposition of Mr. Sayalesh Mangesh Rane (DW[1]) examined on behalf of Defendant was concluded on 13 March 2023. The evidence recorded by the Small Causes Court on 13 March 2023 would indicate that after conclusion of cross-examination, re-examination of the witness was not sought at behest of Defendants. For about 8 long months after conclusion of recording of evidence of DW[1], Defendant did not feel any need to seek any clarification from the witness. As a matter of fact, after recording cross examination of DW[1], if there was any need to seek clarification from the witness, Defendant’s Advocate ought to have conducted re-examination of the witness on the same day or could have asked for an adjournment for conducting such re-examination. Even if it is assumed that due to inadvertence on part of Defendant, re-examination was not conducted on 13 March 2023 or right was not reserved to conduct such re-examination, Defendant could have sought recall of the witness at least on the immediate next date assigned after 13 March 2023. It appears that Suit came up again on 17 March 2023 for filing of evidence closure pursis on behalf of Defendant. At least on 17 March 2023, an opportunity could have been availed by Defendant to seek recall of the witness. However, it appears that after 13 March 2023 the Suit was adjourned on 22 occasions before the application was filed by the Defendant seeking recall of DW[1] on 10 November 2023. The application at Exhibit 146 was thus filed after a gap of 8 months and after 22 adjournments of the Suit.

8. Coming to the averments made in the application at Exhibit-146 it appears that the same was filed under provisions of Sections 137 and 138 of ___Page No.5 of 11___ the Indian Evidence Act 1872 read with Section 151 of the Code. After quoting provisions of Sections 137 and 138 of the Evidence Act, Defendant pleaded following reasons for seeking recall of the witness:

5. I say that it is pertinent to note that at the time of Cross Examination of D.W.[1] there were many statements which was not clarified and it was not explained by D.W.[1] and owing to these ambiguities which require the proper explanation, the right of Re- Examination of a witness as envisaged in section 137 R/W section 138 of the Evidence Act as portrayed above is applied to get clarity and to get a proper understanding with a proper explanation to assist the Hon’ble Court for a better conclusion. Hence, the purpose of Re-Examinations only to get clarifications of some doubts created in the cross examination which will clear the ambiguities and throw the light on the issue will give the better explanation to the matter.

6. The main objective for the Re-Examination of D.W.[1] is that in the cross Examination of D.W.[1] there were discrepancies /ambiguities and for these reason atleast an opportunity should be granted to reconcile the discrepancies, if any, between the statement in Examination-in-Chief and Cross-Examination or to explain any statement inadvertently made during the cross Examination or to remove any ambiguity in the deposition or suspicion so cast on the suspicion so cast on the Evidence by cross examination.

7. Re-Examination of D.W.[1] is necessary for the purpose that it will clear the Obscurities and the facts can be brought to the stronger light by D.W.[1] which will touch down the roots of the matter and give the clarity to it.

9. Thus, the recall of DW[1] was sought by citing vague reasons such as (i) to reconcile the discrepancy, if any or (ii) to explain any statement inadvertently made during cross examination or (iii) to remove any ambiguity in the deposition or suspicion so transgressed on the evidence by cross examination. The exact alleged discrepancy, about which reconciliation was sought was not indicated. In fact, contents of paragraph 6 of the application indicates that the Defendant was not even sure as to whether any discrepancy existed since the words ‘if any’ are used in the application. No particular statement in the cross examination was indicated about which ___Page No.6 of 11___ explanation is needed nor any ambiguity in the deposition is highlighted. In my view therefore, the application filed by Defendant at Exhibit -146 did not make out any specific ground for seeking recall of DW[1]. Reliance of Defendant on provisions of Sections 137 and 138 of the Evidence Act did not cut any ice either. Sections 137 and 138 of the Evidence Act read thus:-

137. Examination-in-chief. The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination - The examination of a witness by the adverse party shall be called his cross-examination. Re-examination. - The examination of a witness, subsequent to the crossexamination by the party who called him, shall be called his reexamination.

138. Order of examinations- Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination - The re-examination shall be directed to the explanation of the matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

10. The above provisions merely describe what ‘re-examination’ means and provide for order in which examination-in-chief, cross examination and re-examination is to be conducted. Section 138 provides for the purpose for which the re-examination is to be conducted.

11. In the present case, the debate is not about permissibility to conduct re-examination after conclusion of cross examination of DW[1]. Record ___Page No.7 of 11___ relating to deposition of DW[1] by 13 March 2023 undoubtedly indicates that after cross examination was concluded, opportunity to conduct reexamination was offered to the Defendant and the said opportunity was not availed by it. The debate in the present case is about grant of opportunity to the Defendant to recall the witness whose evidence was concluded on 13 March 2023. The relevant provision enabling the Court to recall and examine the witness is to be found in Order 18 Rule 17 of the Code, which reads thus:- Rule 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.

12. Thus, a power of recall of witness is essentially conferred on the Court where the Court feels it necessary to seek any clarification from the witness to clear its own doubts. The Apex Court dealt with scope of power of the Court under Order 18 Rule 17 of the Code in its judgment in Vadiraj Naggappa Vernekar (supra), in which an application was filed during the course of recording of evidence in the Suit for conduct of further examination-in-chief of a witness under provisions of Order 18 Rule 17 of the Code. The application was rejected by the Single Judge of this Court, which was confirmed by the Appeal Court. When the matter reached the Apex Court, it was contended on behalf of the Appellant therein that though the cross examination of the witness was complete, Defendant could always be permitted to re-examine the witness on the fresh evidence that would be adduced. The submission was opposed on behalf of the Respondent therein ___Page No.8 of 11___ on the ground that the application was made to fill up lacunae in evidence after cross-examination was complete. In the above background the Apex Court held in paragraphs 24, 25 and 28 as under:-

24. Having heard learned counsel for the respective parties, we are unable to agree with Mr. Narasimha that both the Single Judge and the Division Bench of the High Court had erred in rejecting the appellants’ application under Order 18 Rule 17 CPC since, according to Mr. Narasimha, no prejudice would be caused to the respondent as he would be given a chance of cross-examination after re-examination-in-chief by the plaintiff.

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

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

13. Thus, as held by the Apex Court in Vadiraj Naggappa Vernekar provisions of Order 18 Rule 17 of the Code are to be sparingly used in appropriate case and not as a matter of general rule, since the provision is essentially to enable the Court to seek clarification of any doubt which the Court has with regard to evidence led by parties. The said provision is not intended to be used to fill up omissions in the evidence of a witness, who has already been examined. ___Page No.9 of 11___

14. In my view, the learned Judge of the Small Causes Court has erred in not considering the provisions of Order 18 Rule 17 of the Code while erroneously allowing the application by referring the provision of Sections 137 and 138 of the Evidence Act.

15. Reliance by the Small Causes Court on judgment of the Single Judge of this Court in Gurdial Sing (supra) appears to be misplaced. In case before this Court, the witness was cross examined on 18 June 2009 and on the immediate next date fixed i.e. 18 July 2009, an application was moved for conduct of re-examination of the witness. The issue before this Court in Gurdial Sing was also entirely different. The issue was the scope of reexamination and not exercise of power of recall of witness. This Court held that while conducting re-examination of a witness, Court can permit putting of any question where the party recalling the witness feels that an explanation is required for any matter in the cross examination. In my view therefore, the Trial Court has erred in relying on judgment of the Single Judge of this Court in Gurdial Sing (supra) while allowing the application at Exhibit-146.

16. The learned Judge of the Small Causes Court ought to have also considered pendency of the suit for unduly long time since 1986. It appears that Plaintiffs had filed their evidence 11 years ago in December 2013 and after 7 years thereafter, cross-examination of Plaintiffs’ witnesses was concluded on 29 January 2020. Defendant took two and half years thereafter to file its evidence on 7 September 2022. Further delay of 8 months in seeking recall of witness ought to have been considered in the light of delay ___Page No.10 of 11___ already caused in recording of evidence by the learned Judge. It has been 38 long years that the Suit is pending, and its expeditious decision is the need of the hour. I am sure the Trial Court is aware of this position and has been fixing shorter dates for early decision of the Suit.

17. The impugned order is thus indefensible and is liable to be set aside. Writ petition accordingly succeeds. Order dated 3 April 2024 passed by the learned Judge of the Court of Small Causes at Mumbai, on application at Exhibit -146 is set aside. Considering the pendency of the Suit since the year 1986, the Small Causes Court shall accord due priority for its expeditious decision.

18. With the above directions, the writ petition is allowed. Rule is made absolute in above terms. There shall be no order as to costs. [SANDEEP V. MARNE, J.] ___Page No.11 of 11___