This common order heard revision petitions against the trial court's允许 plaintiff to re-examine PW.1 regarding passbook entries. The High Court held that recalling the witness to deny entries was impermissible, setting aside the order.
Revisions allowed; orders recalling PW.1 for further evidence set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI
C.R.P.Nos.576, 584, 585, 599, 648, 652, 655 & 656 of 2020
COMMON ORDER:
All these revision petitions, under Article 227 of the Constitution of India, are filed by the petitioner/respondent/defendant aggrieved by the orders, dated 05.02.2020, allowing in I.A.Nos.958 of 2019, 960 of 2019, 957 of 2019, 963 of 2019, 962 of 2019, 961 of 2019, 959 of 2019 and 964 of 2019 in O.S.Nos.103 of 2018, 33 of 2018, 219 of 2018, 71 of 2018, 121 of 2018, 51 of 2018, 73 of 2018 and 7 of 2018 respectively, on the file of the Court of Principal Senior Civil Judge, Madanapalle, Chittoor District filed by the respondent/petitioner/plaintiff under Order XVIII, Rule 17 CPC to recall PW.1 for giving further evidence on Ex.B.1.
2 . Heard Sri P. Gangarami Reddy , learned senior counsel appearing for the revision petitioner/respondent/defendant and Sri Chetluru Sreenivas , learned counsel for the respondent/petitioner/plaintiff in all these revisions.
3 . Since the parties in all these revisions are one and the same, all these revisions are heard together and are being disposed of by way of this common order. The parties shall hereinafter be referred to as the plaintiff and defendant for convenience and clarity.
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4 . The case of the plaintiff, in brief, in all the revisions is that the plaintiff filed the aforesaid suits against the defendant for recovery of suit amount with interest at 24% per annum from the date of filing of the suit till realization; that the plaintiff was examined as PW1 and was cross-examined by the counsel for the defendant; that during the course of crossexamination, the plaintiff was confronted with the passbook issued by the plaintiff and the pass book was marked as exhibit B1; that the counsel for the defendant did not confront the plaintiff with regard to the entries in the passbook; that though the plaintiff issued exhibit B1, passbooks, neither the plaintiff nor any of his agents made entries in the pass books admitting receipt of part-payments in those passbooks; and that hence, all these applications are filed by the plaintiff.
5 . The defendant filed counters in all the applications contending that the plaintiff clearly admitted that the passbooks were issued by him to the defendant and it has been marked as exhibit B1 in all the aforesaid suits; that at the time of marking of exhibit B1, the plaintiff/PW1 has clearly verified the contents of the passbooks and he did not deny the contents during the course of his cross-examination; that re-examination of PW1 was also reported nil; that now, at this stage, PW1 is not entitled to give further evidence to fill up the lacunae; and that there are no merits in the petitions and the same is not maintainable and liable to be dismissed.
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6 . On contest, the trial Court allowed all the applications holding that mere recalling PW1 to clear the ambiguity will not prejudice the case of the defendant.
7 . Aggrieved thereby, the defendant preferred all these revision petitions mainly contending that PW1 cannot be recalled to give further evidence on exhibit B1 as it is nothing but filling up the lacunae in his evidence.
8 . The purpose of recalling a witness is to deny the entries made in the pass book which is marked as Ex.B.1. The main contention of the plaintiff is that since the entries in the pass book are not specifically put to him, they could not be answered and what he had admitted is only that such a pass book was issued and there was no occasion to deny the entries in the pass book. It is settled law that re-examination of witness by recalling is not permissible to nullify the admissions made in the cross examination or to destroy the evidence elicited during the cross examination of a witness. Though the plaintiff was not specifically asked about the entries in the pass book, nothing prevented him from explaining the entries in the pass book when it was shown to him before marking the document in evidence. When he clearly admitted the issue of the pass book and the entire pass book has been received in evidence, by recalling him for the purpose of denying the entries in the pass book, the defendant would be put to prejudice as the evidence in the cross examination would be nullified. It is not acceptable that the plaintiff could not explain the entries in the pass book when he was
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cross examined. It was open for the witness to explain the entries when pass book was shown to him. Moreover, re-examination was also stated to be nil after the cross examination introducing Ex.B.1 in evidence. Therefore, under these circumstances, it is not permissible to allow the plaintiff to be recalled for the purpose which he stated. The trial Court erred in allowing the petition observing that the recall of PW.1 for the purpose of clearing ambiguity which the plaintiff did not state. Therefore, the impugned order is liable to be set aside.
9 . In the result, all the revision petitions are allowed by setting aside the orders, dated 05.02.2020, passed in I.A.Nos.958 of 2019, 960 of 2019, 957 of 2019, 963 of 2019, 962 of 2019, 961 of 2019, 959 of 2019 and 964 of 2019 in O.S.Nos.103 of 2018, 33 of 2018, 219 of 2018, 71 of 2018, 121 of 2018, 51 of 2018, 73 of 2018 and 7 of 2018 respectively on the file of the Court of Principal Senior Civil Judge, Madanapalli.
There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
_____________________ JUSTICE B.S.BHANUMATHI
Dt.01-12-2022 PNV
3 issues framed by the court
Whether the trial court erred in recalling PW.1 to give further evidence on Exhibit B.1 regarding passbook entries.
Whether recalling a witness to fill lacunae or deny entries in a passbook after admission of the document is permissible.
Whether re-examination by recalling a witness is allowed to nullify admissions made during cross-examination.
Defendant
Plaintiff
B.S.Bhanumathi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
