IMPORTANT POINT
The power under Order XVIII Rule 17 of the Code can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit. It will not be proper to invoke the power under this provision merely for the reason that recalling a witness at the instance of a party will not cause any prejudice to the opposite party. But, the inherent power of the court under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination and it is not a power which is affected by the express power conferred upon the court under Order XVIII Rule 17 of the Code.

JUDGMENT :

The petitioner is the plaintiff and the respondents are the defendants in the suit O.S.No.124/2013 on the file of the Sub Court, Kochi.

2. The parties shall be hereinafter referred to according to their status in the suit.

3. The suit is instituted for granting a decree of declaration that the document No. 3539/2010 of the S.R.O., Kochi executed by the plaintiff is null and void and for cancellation of that document.

4. The case of the plaintiff in the suit is that sale deed No. 3539/2010 which was executed by him in favour of the second defendant is only a document executed as security for the amount of Rs.90,00,000/- borrowed by him from the defendants.

5. The first and the second defendants filed separate written statements in the suit. The plea of the first defendant in the suit is that he had not lent Rs.90,00,000/- to the plaintiff and that the consideration shown in the sale deed executed by the plaintiff had nothing to do with the amount legally due to him from the plaintiff. The plea of the second defendant in the suit is that there is no debtor-creditor relationship between him and the plaintiff and the transaction covered by the document executed by the plaintiff is an outright sale of property.

6. Though the suit was instituted in the year 2013, examination of witnesses in the case commenced only on 05.11.2019. The evidence in the suit was closed on 20.11.2019 and the suit was posted for hearing on 26.11.2019. On 26.11.2019, the court did not take up the case for hearing and it was adjourned to 30.11.2019 for hearing. On 30.11.2019, the court below heard the arguments of the counsel for the plaintiff and the case was adjourned to 04.12.2019. On 04.12.2019, the court below heard the counsel for the second defendant and the case was adjourned to 05.12.2019. On 05.12.2019, the case was adjourned to 11.12.2019. But, the presiding officer of the court was on leave on 11.12.2019 and the case was adjourned to 20.12.2019. On 20.12.2019, at the request of the parties, the case was again adjourned to 08.01.2020.

7. On 08.01.2020, the first defendant filed two applications as I.A.Nos.1/2020 and 2/2020 in the suit. The application I.A.No.1/2020 was filed by him praying that the four documents produced by him may be received in evidence on his side. The application I.A.No.2/2020 was filed by him praying that the evidence on his side may be re-opened for marking the additional documents which were produced by him.

8. The plaintiff filed counter affidavit in both applications filed by the first defendant and opposed the prayer made therein.

9. As per Ext.P8 order dated 19.3.2020, the learned Sub Judge allowed both applications filed by the first defendant on the condition that the first defendant shall pay an amount of Rs.5,000/- as costs to the plaintiff.

10. The plaintiff has filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P8 order passed by the court below.

11. Heard the learned counsel appearing for all parties and also perused the documents produced in the original petition.

12. The application I.A.No.1/2020 filed by the first defendant is under Section 151 of the Code of Civil Procedure, 1908 (for short 'the Code') for receiving in evidence the additional documents which were produced by him. The application I.A No.2/2020 filed by the first defendant is under Order XVIII Rule 17 and Section 151 of the Code, for re-opening the evidence on his side for the purpose of marking the additional documents produced by him.

13. It is significant that, though the application I.A.No.2/2020 filed by the first defendant was under Order XVIII Rule 17 and under Section 151 of the Code, there was no prayer made in that application for re-calling or re-examining any witness. No such prayer is also seen made in the affidavit filed in support of the aforesaid application. However, the parties had treated I.A.No.2/2020 as an application filed under Order XVIII Rule 17 of th