Ravita & Ors. v. Suresh

1. Allowed, subject to all just exceptions. Application is disposed of. CM(M) 1714/2019 & CM APPL. 51748/2019

2. The present petition under Article 227 challenges the impugned order dated 23rd October, 2019 by which the ld. Trial Court has permitted the reopening of the cross-examination of DW-2 – Ms. Manisha at the behest of the Plaintiff/Respondent. The case of the Petitioner/Defendant is that Ms. Manisha was cross-examined by the Plaintiff on 8th February, 2019 and the matter was thereafter listed for final arguments. At that stage, the Plaintiff moved an application relying upon various documents to argue that the statement made by Ms. Manisha that she signs in Hindi is not correct as she has also signed in English. Along with this application certain documents were also annexed. Considering that application, the impugned order has been passed by which the Trial court has permitted Ms. Manisha to be crossexamined again on 3rd December, 2019.

3. Ld. counsel for the Petitioner relies upon the judgment of the Supreme 2019:DHC:6556 Court in M/s Bagai Construction Thr. Proprietor Lalit Bagai v. M/s Gupta Building Material Store, 2013 (14) SCC 1, the judgment of the Orissa High Court in Sarat Chandra Mohapatra v. Narasingha Mohapatra & Anr., II (2017) CLT 369 (Ori) as well as the Calcutta High Court judgment in Sipra Chatterjee v. Samir Ranjan Mukherjee, II (2018) CLT 101 (Cal.) to argue that Order XVIII Rule 17 CPC is only a provision which enables Court to clarify the doubts and is not meant to be used by the parties who wish to fill up lacunae in the evidence.

4. It is important to note that vide the amendment of the CPC in July, 2002, Order XVIII Rule 17(A) CPC has been repealed. Thus, under the CPC as it is prevalent currently, the power to recall and examine a witness is quite limited. As laid down in M/s Bagai Construction (supra), the parties cannot be permitted to file applications under Section 151 to place on record documents after the witness has been discharged. Further, the same cannot be permitted to fill up lacunae and gaps in the cross-examination/evidence. The observations in the M/s Bagai Construction (supra) read as under:

9. In Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate [Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410: (2009) 2 SCC (Civ) 198] this Court had an occasion to consider similar claim, particularly, application filed under Order 18 Rule 17 and held as under: (SCC pp. 414-15, paras 25, 28-29 & 31)

10. If we apply the principles enunciated in the above case and the limitation as explained with regard to the application under Order 18 Rule 17, the applications filed by the plaintiff have to be rejected. However, the learned counsel for the respondent by placing heavy reliance on a subsequent decision, namely, K.K. Velusamy v. N. Palanisamy [K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275: (2011) 3 SCC (Civ) 665], submitted that with the aid of Section 151 CPC, the plaintiff may be given an opportunity to put additional evidence and to recall PW 1 to prove those documents and if need arises other side may be compensated. According to him, since the High Court has adopted the said course, there is no need to interfere with the same. …

12. Further, it observed that the evidence should be permitted in exercise of its power under Section 151 of the Code. The following principles laid down in that case are relevant: (K.K. Velusamy case [K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275: (2011) 3 SCC (Civ) 665], SCC p. 285, para 19)

13. With these principles, let us consider the merits of the case in hand.

14. The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons known to it, still the plaintiff has not placed these bills on record. In such circumstance, as rightly observed by the trial court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of the judgment, we are of the view that the plaintiff cannot be permitted to file such applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the trial court, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words “at any stage” occurring in Order 18 Rule 17 casually set aside the order of the trial court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW 1 to prove those bills. Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of court and court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 CPC, the plaintiff cannot be permitted.