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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V. BHAVANI SUBBAROYAN, J.
Geetha Marman & Others – Appellants
Versus
Dhanalakshmi & Others – Respondents
C.R.P. Nos. 2578 & 2591 of 2023 & C.M.P. No. 15934 of 2023 & Caveat No. 4121 of 2023
Decided On : 23-08-2023
Recall of Witness - Civil Procedure - Order 18 Rule 17, Indian Evidence Act - The court dismissed the petitions seeking to reopen the case and recall the evidence of a witness. The court held that the power to recall a witness under Order 18 Rule 17 is intended to clarify any issue or doubt, not for further examination or to place additional evidence. The court emphasized that the power should be used sparingly and not to protract the trial. The court found that the petitioners had already been given sufficient opportunities to cross-examine the witness and dismissed the petitions. However, the court allowed the marking of a xerox copy of a compromise decree, subject to proof and relevancy.
Fact of the Case:
The petitioners filed a suit for permanent injunction and sought to amend the pleadings. After several petitions and orders, they sought to reopen the case and recall a witness for further cross-examination.
Finding of the Court:
The court found that the power to recall a witness under Order 18 Rule 17 is intended to clarify any issue or doubt, not for further examination or to place additional evidence. The court emphasized that the power should be used sparingly and not to protract the trial. The court found that the petitioners had already been given sufficient opportunities to cross-examine the witness and dismissed the petitions. However, the court allowed the marking of a xerox copy of a compromise decree, subject to proof and relevancy.
Issues: The main issue was whether the trial court was right in rejecting the applications filed by the petitioners under Order 18 Rule 17 read with Section 151 CPC.
Ratio Decidendi: The power to recall a witness under Order 18 Rule 17 is intended to clarify any issue or doubt, not for further examination or to place additional evidence. The power should be used sparingly and not to protract the trial. The court found that the petitioners had already been given sufficient opportunities to cross-examine the witness and dismissed the petitions. However, the court allowed the marking of a xerox copy of a compromise decree, subject to proof and relevancy.
Final Decision: The Civil Revision Petitions were dismissed at the admission stage with the direction to mark a xerox copy of a compromise decree, subject to proof and relevancy. Connected miscellaneous petitions were closed with no costs.
JUDGMENT
(Prayer: Civil Revision Petitions filed under Article 227 of Constitution of India to set aside the order dated 28.06.2023 in I.A.Nos.448 and 449 of 2023 in O.S.No.371 of 2010 passed by the learned District Munsif, Avinashi respectively)
Common Order:
1. Since the issue and the parties involved in both the petitions are one and the same, they are taken up together and a common order is being passed.
2. The present Revisions have been filed to set aside order dated 28.06.2023 in I.A.Nos.448 and 449 of 2023 in O.S.No.371 of 2010 passed by the learned District Munsif, Avinashi respectively.
3. The brief facts of the case is as follows:-
(i) The petitioners, who are the plaintiffs have preferred O.S.No.371 of 2010 for permanent injunction and other consequential reliefs. The respondents / defendants filed written statement to the suit. Pending suit, the petitioners / plaintiffs initially preferred I.A.No.627 of 2017, to amend the pleadings and the trial court dismissed the said petition on 20.06.2017. The petitioners have preferred CRP No.3748 of 2017 to set aside the order dated 20.06.2017 and this Court allowed the said CRP on 29.09.2022.
(ii) Further, the petitioners / plaintiffs preferred I.A.Nos.59 and 80 of 2023 seeking to file the compromise decree obtained by the respondents / defendants in O.S.No.428 of 2000 and seeking permission to mark the xerox copy of the said decree and both the applications were dismissed on 18.02.2023.
(ii) The petitioners have filed I.A.Nos.448 and 449 of 2023 to reopen the case which stands posted on 30.03.2023 and to recall the evidence of D.W.1 for further cross examination. The said applications were dismissed on 28.06.2023. As against the same, the present Revision Petitions were filed by the petitioners/ plaintiffs.
3. The learned counsel for the petitioners would submit that the petitioners originally filed a suit for permanent injunction and after the filing of written statement by the respondents 1 to 4, the petitioners were constrained to file an application to amend the pleadings in plaint for including declaratory relief in I.A.No.627 of 2017, but the same was dismissed on 20.06.2017 as against which a revision was filed in CRP No.3748 of 2017 before this Court and the same was allowed on 29.09.2022. In such circumstances, after amendment of plaint, the burden of proof heavily lies on the petitioners. When the fact being so, the finding of the trial court does not sound reasonable and pleaded to dismiss the same by allowing the present revision petitions.
4. Per contra, the learned counsel for the respondents reiterated the contentions putforth before the court below and further contends that the court below had rightly taken note of the facts and circumstances of the present case and thereby dismissed the petitions, therefore, pleaded to dismiss the petitions. Further, the petitioners with an ulterior motive came forward with the present petitions to drag on the case. The petitioners are careless and negligent, thereby pleaded to dismiss the Revision petitions.
4a. In reply, the learned counsel for the petitioners seek permission of this Court to mark Document 12, xerox copy of compromise decree passed in O.S.No.428 of 2000, [which was filed for partition], as per Section 63 of Indian Evidence Act.
5. Heard the learned counsels on either side and perused the documents placed on record.
6. Now, the Point that arises for consideration are:
“Whether the trial court was right in rejecting the applications filed by the petitioners under Order 18 Rule 17 read with Section 151 CPC”. .
7. It is necessary to extract the provisions of Order 18 Rule 17 CPC, which are reproduced hereinbelow:-
“17. Court may recall and examine witness. - The Court may, at any stage of 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 t
The power to recall a witness under Order 18 Rule 17 is intended to clarify any issue or doubt, not for further examination or to place additional evidence. The power should be used sparingly and not....
Reopening evidence or recalling witnesses post-trial requires compelling justification; mere intent to fill evidential gaps is insufficient.
The power under Order XVIII Rule 17 CPC should be sparingly used in exceptional circumstances and only if there are valid and sufficient reasons for the recall of witnesses. Costs should be imposed t....
The reopening of evidence and recalling of witnesses must not be used to fill gaps in previously recorded testimony, and parties cannot introduce evidence that contradicts their earlier admissions.
The inherent power of the court under Section 151 of CPC can be invoked to reopen evidence for the ends of justice, and the provisions of Order 18 Rule 17 CPC should be used to clarify ambiguities in....
The court emphasized that allowing repeated cross-examination without valid reasons would cause hardship to the witnesses and that petitions filed at a belated stage without merits would not be consi....
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