Petitioner challenged an order rejecting an application to recall a witness under Order 18 Rule 17 CPC. The court relied on precedent distinguishing inherent powers under Section 151 CPC from specific provisions, finding no jurisdictional error or perversity to warrant interference.
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SAS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
C IVIL APPELLATE JURISDICTION
WRIT PETITION NO.7075 OF 2017
Bhimrao Yashwant Misal
..Petitioner.
V/s.
Rukhminibai Sadashiv Bhosale & Ors. ..Respondents.
Mr.Vivek V.Salunkhe for the petitioner.
Mr.Avinash N.Naikwadi for respondent No.4.
CORAM: M.S.SONAK, J.
DATE : NOVEMBER 21, 2017
P.C.:-
Heard Mr.Vivekh Salunkhe for the petitioner and
Mr.Avinash Naikwadi for respondent No.4.
petitioner's application for recall of witness by resort to Order 18 Rule 17 of the Civil Procedure Code came to be rejected.
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that the application was in the nature of request to the learned trial judge to exercise right under Order 18 Rule 17 of the Civil Procedure code. The circumstances of the case warranted recall of the witness. Mr.Salunkhe further submits that in any case provisions of section 151 of the Civil Procedure Code could always have been invoked to recall the witness in the interest of justice.
1 2003 (5) LJSOFT 58
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decision of this Court in Balkrishna Shivappa Shetty (supra). In para 11 of the said judgment, it is observed as follows :-
“ 11. As already observed above, since the provisions of law contained in Order 18, Rule 17 of the Code though nowhere empowers the Court to allow a party to crossexamine a witness by recalling such witness, and the impugned order having been passed in exercise of the provisions contained in Order 18, Rule 17, the same is unsustainable and is liable to be set aside. The contention that such powers can be exercised under Section 151 of the Code may be true in a given case provided the materials on record justify such order. As already observed above, in this case, mere failure on the part of the respondent Nos. 1 to 3 to take appropriate steps at appropriate time in relation to Exhibit-5, that will not enure to their benefit to seek the assistance of the Court for exercise of its inherent powers under Section 151 to enable the party to fill the lacuna in evidence. Besides, it should not be forgotten, that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code, as has been ruled by the Apex Court in Padam Sen and Anr. V/s. The State of Uttar Pradesh reported in A.I.R.1961 SC 218. The impugned
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order therefore cannot be justified under Section 151 as there is no material on record to warrant exercise of powers under Section 151 to allow the respondent Nos. 1 to 3 to recall the defendant No. 1 for the purpose of further cross-examination.”
order as to costs.
3 issues framed by the court
Whether the trial court correctly exercised its discretion in rejecting the application to recall a witness under Order 18 Rule 17 CPC.
Whether Section 151 CPC can be invoked as an alternative basis to recall a witness when Order 18 Rule 17 is available.
Whether the High Court had sufficient cause under Article 227 to interfere with the impugned order.
Colour shows how this judgement treated each authority
Balkrishna Shivappa Shetty V/s. Mahesh Nenshi Bhakta & Ors.Explained¶5
Balkrishna Shivappa Shetty V/s. Mahesh Nenshi Bhakta & Ors. (2003 (5) LJSOFT 58)
Padam Sen and Anr. V/s. The State of Uttar PradeshReferred¶5
Padam Sen and Anr. V/s. The State of Uttar Pradesh (A.I.R.1961 SC 218) · Who else cites this
3 provisions across 2 enactments
Bhimrao Yashwant Misal
Rukhminibai Sadashiv Bhosale
M.S. Sonak
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
