IMPORTANT POINT
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.

ORDER :

(K. Govindarajan Thilakavadi, J.) :

(Common Prayer : These Civil Revision Petitions filed under Article 227 of the Constitution of India, to call for the records pertaining to the fair and decretal orders dated 26.06.2023 passed in I.A.Nos.13 & 14 of 2023 in O.S.No.35 of 2016 on the file of the Subordinate Court, Thuraiyur and set aside the same.)

By this common order, both these Civil Revision Petitions are being disposed of.

2. Both these Civil Revision Petitions have been filed by the petitioners as against the impugned orders dated 26.06.2023 passed in I.A.Nos.13 & 14 of 2023 in O.S.No.35 of 2016 on the file of the Sub Court, Thuraiyur.

3. The above suit in O.S.No.35 of 2016 was filed by the first to third respondents along with deceased S.Manicam/plaintiffs for permanent injunction. During the pendency of the suit, the plaintiffs filed I.A.Nos.13 & 14 of 2023 to reopen the evidence on the side of the plaintiffs and recall P.W.1 for marking certain documents to establish the case of the plaintiffs. The same was resisted on the side of the defendants who are the petitioners and other respondents in these C.R.Ps.

4.The Trial Court after considering the averments made in the applications and in the counter affidavit allowed the I.As. by stating that no prejudice would be caused to the other side by allowing the applications to re-open the evidence and recall the witness for marking documents mentioned in the applications. Aggrieved by this, the present Civil Revision Petitions have been filed.

5. The learned counsel for the petitioners/first to sixth defendants would submit that the applications to reopen the evidence and recall the witness after lapse of 4 years are nothing but abuse of process of law. The first to third respondents/plaintiffs cannot be permitted to rectify the defects and fill up the lacuna after the evidence was closed. It is submitted that the first to third respondents/plaintiffs had specifically admitted in their plaint that the deceased Krishnasamy Naidu had no legal heirs and now by way of filing certain documents, the first to third respondents/plaintiffs are attempting to deny the above facts which is expressly barred as per the Explanation provided in Section 5 of the Indian Evidence Act, 1872.

6. The learned counsel for the petitioners/first to sixth defendants would submit that even as per Section 115 of the Indian Evidence Act, 1872, there is a statuary bar when the fact is admitted by the party. The same stood as an estoppel to deny the same. He would further submit that the evidence which the first to third respondents/plaintiffs wanted to introduce by way of P.W.1 was not found in the list of documents and therefore, same requires a grant of leave from the Court as mandated under Order VII Rule 14(3) of the Code of Civil Procedure, 1908. Order 7 Rule 14(3) of the Code of Civil Procedure, 1908 reads as under:-

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

7. The learned counsel for the petitioners/first to sixth defendants would further submit that the power to recall any witness under Order 18 Rule 17 of the Code of Civil Procedure, 1908 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 to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded. The discretionary power under Order 18 Rule of the Code of Civil Procedure, 1908 has to be exercised with the greatest care and only in exceptional circumstances.

8. In support of his contentions, the learned counsel for the petitioners/first to sixth defendants has relied upon the following decisions:-

i. Nandkishore Lalbhar Mehta Vs. New Era Fabrics