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1998 Supreme(Mad) 166
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM
S. S. S. Durai Pandian - Appellant
Versus
S. A. Samuthira Pandian. - Respondents
Civil Revision Petition No. 1985 of 1997 and C.M.P. No. 10118 of 1997
Decided On : 12 February 1998
The trial court has the power to recall a witness for cross-examination at the instance of a party under Order 18, Rule 17 CPC, and this power is not restricted to action taken by the court on its own motion.
Headnote:
ORDER 18 RULE 17 CPC - RECALL OF WITNESS FOR CROSS-EXAMINATION - POWER OF COURT - SCOPE AND EXTENT - INTERPRETATION OF ORDER 18 RULE 17 CPC - DISCRETION OF COURT - EXERCISE OF - FACTORS TO BE CONSIDERED.
Fact of the Case:
The defendant filed a petition under Order 18, Rule 17 of the Code of Civil Procedure (CPC) to recall the plaintiff for cross-examination regarding certain documents that were marked through the defendant during his cross-examination. The trial court dismissed the petition, holding that there was no valid reason to recall the plaintiff. The defendant filed a revision petition challenging the trial court's order.
Finding of the Court:
The High Court allowed the revision petition and set aside the trial court's order. The court held that the trial court has the power to recall a witness for cross-examination at the instance of a party under Order 18, Rule 17 CPC, and that this power is not restricted to action taken by the court on its own motion. The court also held that the power to recall a witness is discretionary, but it should be exercised with care and caution, and only in peculiar circumstances.
Issues: 1. Whether the trial court has the power to recall a witness for cross-examination at the instance of a party under Order 18, Rule 17 CPC? 2. If so, what are the factors that the court should consider in exercising this power?
Ratio Decidendi: 1. The court held that the trial court has the power to recall a witness for cross-examination at the instance of a party under Order 18, Rule 17 CPC. The court relied on the following factors in reaching this conclusion: * The language of Order 18, Rule 17 CPC, which states that the court "may" recall a witness for cross-examination, indicates that the court has the discretion to do so. * The fact that the power to recall a witness is not restricted to action taken by the court on its own motion is supported by the commentary on Order 18, Rule 17 CPC in Sarkar on Evidence. * The decisions of various courts, which have held that the trial court has the power to recall a witness for cross-examination at the instance of a party. 2. The court held that the following factors should be considered by the court in exercising its discretion to recall a witness for cross-examination: * Whether there is a valid reason to recall the witness. * Whether the recall of the witness would prejudice the interests of the other party. * Whether the recall of the witness would be in the interests of justice.
Final Decision: The High Court allowed the revision petition and set aside the trial court's order. The court held that the trial court has the power to recall a witness for cross-examination at the instance of a party under Order 18, Rule 17 CPC, and that this power is not restricted to action taken by the court on its own motion. The court also held that the power to recall a witness is discretionary, but it should be exercised with care and caution, and only in peculiar circumstances.
Key Points: - The trial court has the power to recall a witness for cross-examination at the instance of a party under Order 18, Rule 17 CPC, not restricted to sua sponte action (!) - The recall power is discretionary and must be exercised with care and caution, in peculiar circumstances (!) [21000134380023] - The documents marked through a witness during cross-examination can warrant recalling the plaintiff for cross-examination on those documents, if there is a valid reason and it does not prejudice the other side [21000134380009][21000134380013] - The recall should consider whether there is a valid reason, potential prejudice to the other party, and whether recalling serves the interests of justice [21000134380013] - The judgment sets aside a trial court order denying recall and holds that recall under Order 18, Rule 17 CPC is permissible in appropriate circumstances, independent of Section 151 CPC, with discretion preserved [21000134380016][21000134380023] - The decision cites multiple precedents supporting that recall for re-cross-examination is possible under Order 18 Rule 17 in special circumstances; power is not confined to self-motion actions [21000134380021][21000134380023] - The court emphasized that the right to recall is discretionary and must be used for peculiar circumstances, not routinely [21000134380023] - The documentary evidence Exs. A2 to A4, marked belatedly in cross-examination, can be considered to justify recall for cross-examination [21000134380009][21000134380027]
How to recall a witness for cross-examination under Order 18 Rule 17 CPC at the instance of a party?
What is the scope and discretion of the trial court in recalling a witness for cross-examination under Order 18 Rule 17 CPC?
What factors should the court consider when exercising the power to recall a witness for cross-examination under Order 18 Rule 17 CPC?
The Order of the Court was as follows :
The question posed in this civil revision petition is this : Can the plaintiff be recalled for cross-examination, on the application field by the defendant under Order 18, Rule 17 of the Code of Civil Procedure.
2. The facts are these : The respondent herein, the plaintiff filed a suit in O.S. No. 122 of 1996 on the file of the Subordinate Court, Virudhunagar for the recovery of the amount against the defendant/petitioner. After examination of the witnesses on the side of the plaintiff/respondent the defendant/petitioner was examined as D.W. 1. During the course of cross-examination the counsel for the plaintiff marked Exs. A2 to A4 through D.W. 1. D.W. I admitted that he was the author of those documents.
3. Immediately thereafter, the petitioner filed a petition in I.A. No. 350 of 1997 before the trial Court under Order 18, Rule 17 of the Code of Civil Procedure requesting the Court to recall P.W. 1 the plaintiff/respondent, to enable him to cross-examine P.W. 1 with reference to those documents which were marked through the defendant/petitioner.
4. This was resisted by the plaintiff, the respondent herein contending that the petitioner having admitted that Exs. A2 and 3 were the letters written by him addressed to P.W. 1 could very well explain those documents in re-examination, and that the plaintiff need not be recalled for cross-examination, and that it would merely help the defendant only to drag on the proceedings.
5. It was also further contended that the provision of law under Order 18, Rule 17 quoted in the petition has no application to the facts stated therein and that it applies only to the Court to exercise its jurisdiction to put any question to the witness and that the said provision cannot be invoked by the parties in the suit, to recall the witnesses already cross-examined for further cross-examination.
6. After having considered the submissions made by both the parties, the trial Court passed the impugned order dismissing the application filed for recalling the plaintiff mainly on the ground that there was no valid reason to recall the plaintiff who had already been cross examined. Hence this revision.
7. Mr. Sivaji, counsel for the petitioner would press into service the following submissions :
(i) The application under Order 18, Rule 17 is perfectly valid in law as it provides the cross-examination of the witnesses by recalling at the instance of the parties to the suit. Even otherwise Section 151 of the Code of Civil Procedure confers powers to the Court to make such an order to meet the ends of justice, to recall the witnesses for cross-examination.
(ii) The documents in favour of the plaintiff Exs. A2 to A4, admittedly, were marked only during the cross-examination through D.W.1. There is no reference about these documents in the plaint. The plaintiff also did not speak about these documents, while he was in the box, either during chief examination or during cross-examination. For the first time the question has been put to D.W.1 with reference to those documents and the same had been marked. In the situation, it is just, and necessary that P.W.1 has to be recalled for putting questions on behalf of the defendant with reference to those documents. Therefore, the lower Court is not correct in saying that there was no valid reasons to accept the request of the defendant, the petitioner herein, to recall the witness.
8. These submissions were refuted by the counsel for the respondent/plaintiff by filing counter. Mr. Sivaraman, representing Mr. N. Damodaran, the counsel for the respondent/plaintiff would reiterate in support of the impugned order that this could be clarified even in the re-examination, and that there was no necessity to recall the witness. He would also further submit that the provision of law quoted in the application before the trial Court would apply to the Court alone, to put questions and not for cross-examination at the instance of the defend
