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SUPREME COURT OF INDIA
Kurian Joseph, Rohinton Fali Nariman, JJ.
Ram Rati – Appellant
Versus
Mange Ram (D) Thr Lrs. & Ors. – Respondents
Civil Appeal No. 1684 of 2016 [@ Speical Leave Petition (C) 22141 of 2013]
Decided on : 23-02-2016
Civil Procedure Code, 1908 – Order 18 Rule 17 – Civil Suit – Examination of Witness – Order of consolidation of suits – Re-opnening of Evidence – Rule 17 of C.P.C – Effect of – Inherent powers of Court – When can be exercised – Held, 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 -Power can also be exercised at any stage of the suit, even after closure of evidence - 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.
Facts of the Case:
Whether a witness can be recalled under Order 18 Rule 17 of The Code of Civil Procedure, 1908 for further elaboration of aspects left out in evidence already closed - Whether after consolidation of the suits, the plaintiff in Civil Suit should get an opportunity to cross-examine the PW-1 -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 - 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.
Finding 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 7 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.
Result: Appeal is allowed
JUDGMENT :
KURIAN, J.
Leave granted.
2. 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.
3. 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:
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.”
4. 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.
5. 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).
6. 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 consolidati
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