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2010 Supreme(Mad) 5359
High Court of Judicature at Madras
T. MATHIVANAN
M/s. Pan Resorts Limited, Rep by its Director Sarath Kakamanu
Versus
H.H. Karthika Pooyam Thirunal Gourj Parvathi Bayi & Others
A.Nos.5471 & 5472 of 2010 in CS.No.632 of 1997
Decided On :Decided On : 10-12-2010
For the Appellant:Satish, Advocate.
For the Respondent:R. Rajarajan, R.Meelakandan, A.R. Karunakaran, Advocates.
The inherent power of the Court cannot override the express provisions of the law, and the term 'at any stage of the suit' does not include the stage of judgment.
Headnote:
Reopening of Evidence - Civil Procedure Code - Order 14 Rule 8, Order 17 Rule 7, Order 18 Rule 17, Section 151 - Order 18 Rule 17, Order 17 Rule 6 and 7, Order 7 Rule 14, Section 151 - Sultan Saleh Bin Omer v. Vijayachand Sirimal, Vadiraj Naggappa Vernekar (D) through Lrs. vs. Sharad Chand Prabhakar Gogate, Suresh Kumar v. Baldev Raj, United Bank of India v. Naresh Kumar and others, Kejriwal Enterprises v. General Manager, Ordinance Factory and others, Kulwant Singh v. Makhan Singh, M/s. Nibro Limited v. National Insurance Co. Ltd., M/s.Rajghria Paper Mills Ltd., vs. General Manager, Indian Security Press and another, Shri. Anisuddin and another v. Vimla Sethi and another, Lal Chandran Keshav vs. Rajesh Thakoor, Maharashtra Industrial Development Corporation Nagpur and Another v. M/s. Gajanan Printing Press Office, Nagpur & Ors., Arjun Singh v. Mohindra Kumar and others
Fact of the Case:
The suit was filed for specific performance of an agreement of sale dated 03.08.1994. The plaintiff sought to reopen the evidence of PW 1 and recall him to mark various sale deeds and other documents. The suit was instituted on 07.07.1997 and after completion of evidence and arguments, the plaintiff sought to reopen the evidence and recall PW 1 to produce additional documents.
Finding of the Court:
The Court dismissed the applications to reopen the evidence and recall PW 1, stating that the documents sought to be produced were within the plaintiff's possession and knowledge earlier, and the plaintiff did not exercise due diligence to produce them earlier. The Court also noted that the suit had been pending for 13 years and the applications to reopen the evidence were made after the completion of arguments before three judges of the Court.
Issues: 1. Whether an admitted fact is needed proof? 2. Whether the sale deeds referred to in the proof affidavit of the plaintiff are relevant to show the division of the property? 3. Whether the plaintiff can be permitted to produce documents sought to be produced at the fag end of the suit?
Ratio Decidendi: The Court held that the plaintiff did not exercise due diligence to produce the documents earlier and that the inherent power of the Court cannot override the express provisions of the law. The Court also noted that the term 'at any stage of the suit' does not include the stage of judgment.
Final Decision: The applications to reopen the evidence and recall PW 1 were dismissed. No order as to costs.
Certainly. Based on the provided legal document, here are the key points:
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The Court emphasized that its inherent power cannot override the express provisions of law, and the phrase "at any stage of the suit" does not include the stage of judgment (!) .
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The applications filed by the plaintiff to reopen evidence and recall PW 1 were based on the desire to produce documents that were allegedly within their possession and knowledge, but the Court found that there was a lack of due diligence in producing these documents earlier (!) (!) .
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The Court noted that the documents sought to be produced do not introduce a new cause of action but are intended to support the plaintiff's case as stated in the pleadings and affidavits (!) (!) .
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The technical objections regarding the maintainability of the applications were considered, but the Court held that procedural irregularities should not defeat substantive rights unless they go to the root of the case (!) (!) .
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The Court observed that the power to recall witnesses under the applicable procedural rules is limited to clarifying ambiguities and not to fill gaps in evidence that could have been produced earlier (!) (!) (!) (!) .
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The Court recognized that the applications were filed after a long pendency of over 13 years, and the delay, coupled with the lack of due diligence, weighed against allowing the production of additional documents at this late stage (!) .
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The Court highlighted that the production of documents that were not in the possession or power of the plaintiff at the time of filing the suit, without proper disclosure, is generally not permissible unless exceptional circumstances are demonstrated (!) (!) .
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The Court underscored that procedural provisions require that documents which ought to have been produced with the pleadings or entered into the list at the time of filing cannot normally be introduced later without leave, especially if they are not part of the pleadings (!) (!) .
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The Court dismissed the applications to reopen evidence and to recall PW 1, citing the absence of sufficient reasons, the long delay, and the fact that the evidence sought to be produced was available earlier but not produced due to lack of due diligence (!) (!) .
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Overall, the Court emphasized the importance of adhering to procedural rules and the principle that the law's express provisions cannot be bypassed by invoking inherent powers, particularly at the stage of judgment (!) (!) .
Please let me know if you need further analysis or assistance.
1. These two applications have been filed by the applicant after invoking the proviso to Order 14 Rule 8 and Order 17 Rule7 of Original Side Rules read with Order 18 Rule17 and Section 151 of Civil Procedure Code with a prayer to reopen the evidence of PW 1 and to recall and permit PW 1 to mark various sale deeds as specifically set out in para 27 and 29 of the proof affidavit of PW 1, the sale deeds pertaining to Plot No.7; the Board Resolution of the Plaintiff Company & Form No.32; the letter dated 28.07.2008 written by the sixth defendant to the Commissioner of Police with a copy marked to PW 1 and the e-mail dated 24.07.2008 sent by the fifth defendant to the applicant.
2. The suit in SC.No.632 of 1997 has been instituted on 07.07.1997 for the relief of specific performance of agreement of sale dated 03.08.1994. After inviting the written statements of the defendants, necessary issues and additional issues were formulated on 08.11.2005 and 03.09.2007 respectively.
3. It is obvious that the plaint was signed and verified by one K.Subbiah, who was the Director of the plaintiff company at the time of filing of this suit. Subsequent to his death on 29.12.2005 the applicant who is none other than the son of the said K.Subbiah was permitted to continue the suit on behalf of the plaintiff by the order of this Court dated 09.03.2010, as he being one of the Directors of the plaintiff company.
4. That on 09.03.2010, the applicant (PW1) by way of marking the commencement of trial had filed his proof affidavit. In para 27 of his proof affidavit, he has given a vivid account as to how the entire property located at No.1 LB road has been divided and sold under various sale deeds to various companies and entities who were controlled by the applicant and his father excepting a few small pieces of land as specified in paragraphs 28 and 29 of the proof affidavit. Besides this, the applicant has also stated in paragraphs 28 to 30 as to how certain small portions of the property were illegally sold by the royal family members to the third parties and also about the pendency of three suits in C.S.No.158 to 160 of 2006 on the file of this Court. Under the above circumstance, the applicant has come forward with these two applications to reopen his evidence (evidence of PW 1) and also to recall and permit him to mark;
(a) the various sale deeds as specifically set out in paragraphs 27 and 29 of his proof affidavit.
(b) the sale deeds pertaining to Plot No.7.
(c) the Board Resolution of the plaintiffs company.
(d) letter dated 28.07.2008 written by the 6th defendant to the Commissioner of Police with a copy marked to the applicant.
(e) e-mail dated 24.07.2008 sent by the 5th defendant to the applicant (PW 1).
5. Before we go into the merits of the case it may be better to have the assistance of the proviso to Order 18 Rule 17 of Civil Procedure Code.
Order 18 Rule 17 CPC
"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."
6. From the language coined in Rule 17 to Order 18 an inference can be drawn that;
"Power to recall any witness can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but such power is not to be invoked to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. If the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter."
7. This principle is laid down by the Honble Supreme Court in Vadiraj Naggappa Vernekar (D) through Lrs. vs. Sh
