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High Court Of Orissa
K. C. JAGADEB ROY
SRI BAURIBANDHU MOHANTY - Appellant
Versus
SRI SURESH CHANDRA MOHANTY - Respondent
Civil Revision 889 Of 1989
Decided On : 07/23/1991
EVIDENCE ACT, 1872 - SECTION 23 - ADMISSIONS IN CIVIL CASES - COMPROMISE PETITION - ADMISSIONS MADE IN COMPROMISE PETITION NOT ACTED UPON - NOT RELEVANT AS EVIDENCE.
Fact of the Case:
Plaintiffs filed a suit for declaration of easement rights over a pathway. During the pendency of the suit, a compromise petition was filed but was not acted upon due to the absence of a sketch map. The plaintiffs sought to recall witnesses to exhibit the compromise petition and admissions made therein.
Finding of the Court:
The court held that the compromise petition, not having been signed by the parties and acted upon, could not be treated as a valid compromise petition and used as evidence. The court also held that admissions made in the compromise petition, even if treated as valid, were not intended to be treated as evidence by any of the parties due to the failure of the compromise petition.
Issues: Whether admissions made in a compromise petition that was not acted upon can be allowed to be led in evidence.
Ratio Decidendi: Section 23 of the Evidence Act, 1872 provides that no admission is relevant if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.
Final Decision: The court dismissed the plaintiffs' petitions to recall witnesses for the purpose of exhibiting the compromise petition and admissions made therein as evidence, holding that such admissions were not relevant under Section 23 of the Evidence Act.
K. C. JAGADEB ROY, J.
( 1 ) IN these two Civil Revisions, the petitioners challenged the orders of the Munsif, Jagatsinghpur dated 19-8-89 and dated 9-8-89 respectively rejecting the applications of the plaintiffs to recall P. W. 7 and D. W. 5 for further examination in relation to some admission, made in the compromise petition filed on 5-3-82 but was not acted upon. The Court has rejected the application stating that such applications could not be allowed in view of Section 23 of the Evidence Act (for short 'the Act' ).
( 2 ) ). The short facts leading to the present Civil Revisions are as follows : the present petitioners along with Opposite Party No. 3 had filed the suit bearing No. 64 of 1981 before the learned Munsif, Jagatsinghpur against the present Opposite Parties 1 and 2 with a prayer to declare that they had acquired their right of easement in respect of the Schedule-C land of the plaint schedule and to restrain the Opposite Parties by way of injunction not to interfere with their peaceful enjoyment of the said pathway. 2a. While the suit was in progress, with the intervention of gentlemen of the locality, a joint compromise petition was filed by both the parties on 5-3-82 in the suit which was signed by their respective lawyers. Since no sketch map was annexed with the compromise petition, the trial court by the order dated 6-3-82 asked the parties to rectify the defect by 15-3-82. As no such sketch map was filed in compliance with the order dated 6-3-82, the compromise petition was not acted upon.
( 3 ) THE present petitioner No. 1 was examined himself as P. W. 7. After his evidence was closed, a petition was filed on behalf of the plaintiffs for recalling P. W. 7 under Order XVIII, Rule 17 of the Code of Civil Procedure (for short 'the Code') read with Section 151 of the Code. The impugned order dated 19-8-89 shows that a petition under Order XVIII Rule 17 of the Code was filed by the plaintiffs to recall P. W. 7 for the purpose of exhibiting the joint compromise petition which was rejected by the trial court. Against the said order dated 19-8-89, the plaintiffs have preferred this Civil Revision No. 889 of 1989.
( 4 ) THE petitioners have also filed another petition to recall D. W. 5 for the same purpose which was also rejected by the trial Court by its order dated 9-8-89 against which order the plaintiffs have preferred Civil Revision No. 890 of 1989.
( 5 ) AS requested by both the parties, since both the Civil Revisions raise same question of law, both the Civil Revisions were heard together and a common judgment is passed.
( 6 ) FROM the order dated 9-8-89 against which Civil Revision No. 890 of 1989 is filed, it appears that the defendants objected to the petition of the plaintiffs filed under O. XVIII, Rule 17 of the Code read with Section 151 of the Code on the ground that the plaintiffs were not intending to bring any new evidence to the notice of the Court and had failed to cross-examine D. W. 5 on the matters already on record. The purpose of that petition is to delay the hearing of the suit and to harass the defendants. The petitioners also filed at a belated stage. Order XVIII, Rule 17 of the Code which empowers the court to recall and examine the witnesses is quoted below:"order XVIII Rule 17 : 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. "this provision does not entitle a party to recall a witness if he so chooses. The power which is given to the court for allowing a party who wants to recall a witness for the purpose of leading any fresh evidence to the court is contained in Order XVIII, Rule l7a of the code which is introduced into the Parent Act by amendment of the Code of Civil Procedure (Amendment) Act, 1976, and is quoted below :"order XVIII, Rule 17a, Production of evidence not previously known or wh
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