The permissibility of recalling a witness under Order 18 Rule 17 CPC and its limitations.

JUDGMENT/ORDER :

Challa Kodanda Ram, J.

This Revision is directed against the order dated 24.01.2018, whereby and whereunder the learned Senior Civil Judge at Penukonda allowed I.A. No. 17 of 2018 in O.S. No. 38 of 2007, taken out by the respondents plaintiffs to recall P.W.5 for further examination to prove Ex.A10.

2. Petitioners herein are the defendants against whom the respondents plaintiffs filed the above said suit seeking declaration of their right over the suit property. During the course of examination, when Ex.A10 permanent Khararu Dasthaveju was confronted to D.W.1, he denied the signature thereon. The case of the respondents is that P.W.5 is one of the attestors of Ex.A10, but he was not confronted with the said document due to oversight, at the time of his examination. Hence, it became necessary to recall P.W.5. The trial Court, on finding that Ex.A10 was not confronted to P.W.5 by the respondents-plaintiffs, due to oversight, opined that filing of the aforesaid I.A. cannot be said to be malice and hence, allowed the same by the order under Revision.

3. Learned counsel for the petitioners submits that the evidence of the respective parties was closed and at the stage of arguments, the respondents plaintiffs filed the present I.A. under Order 18 Rule 17 of the Code which is impermissible in law.

4. Learned counsel for the respondents vehemently opposes the Revision. Placing reliance on the judgment of Punjab & Haryana High Court in O.Prakash v. Sarupa, (1981) AIR(P&H) 157 learned counsel submits that the Court has ample power to recall the witness. According to her, for the mistake on the part of the counsel, the respondents plaintiffs cause cannot be put to jeopardy. The learned counsel further submits that as per the provisions of Section 47 of the Indian Evidence Act, 1872, it is absolutely necessary to prove a document. In support of her contentions, the learned counsel also places reliance on the judgment of this Court in A.S. No. 294 of 1930 (Suryanarayana v. Achamma).

5. It is to be borne in mind that the Civil Procedure Code prescribes the method and manner of conducting trial of the cases and in particular, the order of production of witnesses and leading of evidence. Though there is a provision for examination-in-chief, cross-examination and thereafter, re-examination, the provision contained under Order 18 Rule 17 CPC is an exception to allow recalling of witness for cross-examination.

6. Order 18 Rule 17 reads as under:

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.

7. If one examines Order 18 Rule 17, one would find that the discretion of the Court to recall a witness, who was examined earlier and put such questions to him as the Court deems fit, is limited; in the sense, firstly, if the Court seeks any clarification, such power is to be exercised, which means that the same is not available to the parties to the proceedings; secondly, recall of a witness for re-examination is subject to the Law of Evidence for the time being in force. So far as the examination of witnesses under the Indian Evidence Act is concerned, it may be noted, the same is governed by the provisions of Section 135, 136, 137 and 138 thereof.

8. Admittedly, the suit is at the stage of arguments. The reason stated in the affidavit filed in support of the present Application by plaintiff No.2 was that Ex.A10 was executed by the defendants in the presence of his father and other witnesses and one of the attestors is P.W.5, but he was not confronted with the said document by mistake and oversight. It was further stated that since D.W.1 had denied execution of the same and appending his signature thereon, in his cross-examination, it had become necessary to recall P.W.5, as it is an extremely important piece of evidence supporting the claim of the plaintiffs.