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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1684 OF 2016

(Arising from S.L.P. (C) No. 22141 of 2013)

RAM RATI

… APPELLANT (S)

VERSUS

MANGE RAM (D) THROUGH LRS.

AND OTHERS

… RESPONDENT (S)

J U D G M E N T

KURIAN, J.:

Leave granted.

2.

Whether a witness can be recalled under Order 18 Rule 17 of

The Code of Civil Procedure, 1908 (hereinafter referred to as ‘the

Code’) for further elaboration of aspects left out in evidence already

closed, is the issue for consideration in this case.

3.

There are two suits filed by the respective parties and pending

before the Tis Hazari Courts at Delhi. Civil Suit No. 43 of 2009 was

filed by the respondents herein for declaration and injunction in

respect of the plaint schedule property. In respect of very same

property, the appellant herein also filed a suit seeking permanent

REPORTABLE

Digitally signed by

Rajni Mukhi

Date: 2016.03.14

11:56:53 IST

Reason:

Signature Not Verified

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injunction and that suit has been numbered as Civil Suit No. 44 of

2009. The suits were consolidated for common trial, on joint request,

by order dated 08.12.2007. Suit No. 43 of 2009, with the consent of

the parties, was ordered to be tried in the court where Suit No. 44 of

2009 was pending by order dated 26.09.2005 of the District Judge,

Delhi. Much before that, evidence in Civil Suit No. 44 of 2009 had

commenced and the appellant herein had been examined as PW-1

and the respondents herein had cross-examined PW-1 as well. That

evidence was closed on 16.04.2005. After the consolidation of the

two suits, the respondents herein filed an application on 13.04.2010.

We shall extract the averments made in the said application as

under:

“APPLICATION ON BEHALF OF DEFENDANT FOR

DISCHARGING THE STATEMENT OF PW-1 AND

EXAMINATION OF WITNESS I.E. PW-1 AFRESH UNDER

ORDER 18 RULE 17 C.P.C. READ WITH SECTION 151

C.P.C.

Sir,

The applicant most respectfully submits as under:-

1.

That the plaintiff examined PW-1, Sh. Chottu Ram

as PW1- on 6.12.2004. His cross examination was

concluded on 16.4.2005.

2.

That this Hon’ble Court consolidated the present

suit with another suit titled as Mange Ram Vs. Chander

Kanta etc. vide its order dated 8.12.2007.

3.

That while passing the order of consolidation

dated 8.12.2007, this Hon’ble Court ordered as under:-

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“It has been so urged on behalf of both

contesting sides that trial in two cases be

conducted commonly and evidence led in either

case be read in both these cases.”

4.

The directions or observations of this Hon’ble

Court as reproduced above operates prospectively and

not retrospectively.

5.

That when the Hon’ble Court ordered that

evidence in one case may be read in evidence in

another case, then plaintiff in Mange Ram Vs. Chander

Kanta & Ors. would be deprived of the opportunity of

cross examination of PW-1 which was concluded on

16.4.2005, much prior to the date of order of

consolidation.

6.

That as per settled position of law on this point

and as per terms of order of this Hon’ble Court dated

08.12.2007, either the PW-1 be examined afresh or

opportunity to cross examine the PW-1 may be granted

to the applicant/plaintiff in Mange Ram Vs. Chander

Kanta & Ors.

It is, therefore, prayed that PW-1 may kindly be

examined afresh or opportunity to cross examine the

PW-1 in Ram Rati Vs. Mange Ram etc. may kindly be

granted to the applicant.”

4.

By order dated 15.04.2008 of the Additional District Judge,

Delhi in Civil Suit No. 43 of 2009 filed by the respondents, the suit as

against Defendant Nos. 5 and 6 was rejected and it was held that

the plaint did not disclose any cause of action against them.

Defendant No. 5 was the plaintiff in Suit No. 44 of 2009 and

Defendant No. 6 is her husband. That Defendant No. 5 is the

applicant before this Court.

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5.

Thus, the only ground taken up in the applicat