Writ petition challenging the trial court's order allowing recall for P.W.2 dismissed. Court held Section 151 CPC permits witness recall for re-examination as inherent powers remain unaffected by Order 18 Rule 17.
Writ petition rejected as devoid of merits; trial court's order allowing witness recall with costs approved.
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.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.
WRIT PETITION NO.4987 OF 2012
PRAKASH RAMRAO KALYANKAR. ... PETITIONER.
VERSUS
SIDDARTH PANNALAL KANKARIYA. ... RESPONDENT.
Advocate for Petitioner : Mr. Patil Milind M. (Beedkar) Advocate for Respondent :Mr. R R Imale.
CORAM : S.S. SHINDE, J. Dated: July 03, 2012.
PER COURT:
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application for recalling the witness for examination or cross-examination. The powers under O.18, R.17 of the Code are to be exercised by the Court in appropriate cases, if it is felt necessary by the concerned Court. However, the power under O.18, R. 17 is to be exercised by the Court itself by asking the questions or clarification from the witness. However, the said powers under O.18, R.17 cannot be invoked or exercised allowing the parties to examine or crossexamine the witness. The learned Counsel submitted that the powers conferred upon the Court to permit a party under O.18, R.17-A to produce additional evidence, has been taken away by the legislature by way of deleting the said provision from the Code. Therefore, according to the learned Counsel for the petitioner, in the instant case, the trial Court should not have allowed the plaintiff to recall the P.W./2 for examination. The learned Counsel for the petitioner invited my attention to the judgment of this Court in case of Balkrishna Shivappa Shetty vs. Mahesh Nenshi Bhakta and others [2003(3) Mh.L.J. 47]
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and submitted that the provisions contained in O.18, R.17 of C.P.C. do not empower the Court to recall the witness for the purpose of examination or crossexamination by either of the parties though it does permit recall of witness for the purpose of examination of the Court itself. The learned Counsel, relying upon the pleadings in the petition, grounds taken therein and the provisions of O.18, R.17 of C.P.C., and the judgment cited supra, would submit that this writ petition deserves to be allowed.
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facts of that case, the Supreme Court held that even the powers u/s 151 of the C.P.C. can be used for reopening the evidence or for recalling the witnesses. Therefore, relying upon the said decision of the Supreme Court, the Counsel for the respondent submits that the writ petition may be dismissed. He submits that already the P.W.2 has been recalled and examined by the Counsel for plaintiffs.
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power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the Court to put such question to elicit any clarifications. The Supreme Court, in para 11 of the judgment has also considered that, the Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. It is held that, deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and
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commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence. In para 12 of the said judgment, the Supreme Court has observed that, in appropriate cases, the Court may exercise its inherent powers u/s 151 of the Code, permitting the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.
In para 16 of the said judgment, the Supreme Court has also added a word of caution while exercising the powers u/s 151 of the Code or O.18 R. 17 thereof.
Therefore, it follows from the said authoritative pronouncement of the Supreme Court that the witnesses can be recalled for examination or reexamination, as the case may be, by invoking the provisions of Section 151 of the Code since the said
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inherent power is not affected by the provisions of O. 18 R.17 of the Code. In that view of the matter, by the impugned order, though it is not specifically mentioned, impliedly the trial Court has exercised the powers under Section 151 of the Code.
PLK/*
2 issues framed by the court
Whether Order 18 Rule 17 of the Code of Civil Procedure empowers a party to recall a witness for examination or cross-examination.
Whether Section 151 of the Code of Civil Procedure permits recalling a witness for re-examination despite the ambit of Order 18 Rule 17.
Colour shows how this judgement treated each authority
Balkrishna Shivappa Shetty vs. Mahesh Nenshi Bhakta and othersReferred¶15
[2003(3) Mh.L.J. 47] · Who else cites this
K.K. Velusamy vs. N. PalanisamyRelied on¶19
[2011 (11) SCC 275] · Who else cites this
2 provisions across 1 enactments
PRAKASH RAMRAO KALYANKAR
SIDDARTH PANNALAL KANKARIYA
S.S. SHINDE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
