Dismissed¶37

Amar Nath v. Kanshi Ram

Himachal Pradesh HC3 Apr 2025CMPMO/924/2019

Case brief

AI extract

What is this about?

Article 227 supervisory jurisdiction; Order 18 Rule 17 CPC recall of witness used sparingly; Section 151 CPC reopening of evidence conditions; closure of plaintiff's evidence; examination of witnesses after evidence closed; mandatory injunction for demolition of construction raised during pendency of suit; amendment of plaint Order 6 Rule 17 CPC; no additional issues required; Himachal Pradesh High Court; CMPMO No. 924 of 2019; Amar Nath vs. Kanshi Ram; petition dismissed.

What did the court decide?

The contention that no additional issues were framed is without force: with respect to construction raised during the pendency of the suit, issue No.2 framed on 17.02.2014 already covered grant of a mandatory injunction in favour of the respondent/plaintiff for demolishing the construction so raised and restoring the suit land to its original position.

Amar Nath Vs Kanshi Ram — Writ and Judicial Review | Himachal Pradesh HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶37

Issue for consideration

Whether the order dated 30.09.2019 passed by the learned Civil Judge, Barsar on the petitioner's application (objecting to recording of evidence of the respondent/plaintiff whose evidence had been closed on 1.1.2015) should be set aside in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. +3 more

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Court's answer

On the settled principles, no case for interference by this Court in its supervisory jurisdiction was made out; the petition was dismissed, pending miscellaneous applications were disposed of, and the parties were directed to appear before the trial Court on 23rd April, 2025 with the record to be sent back forthwith.

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Ratio / Principle

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Key takeaways

The power under Order 18 Rule 17 CPC is to be used sparingly; it can only be permitted to clarify doubts or clear any ambiguity, and cannot be used to fill up lacunae/omissions in evidence already recorded or, under its garb, to call a witness for further examination-in-chief or to place additional evidence which could not be produced when evidence was being recorded.ratio¶27
As there exists no specific provision in the Code of Civil Procedure for reopening of evidence, resort can be had to Section 151 CPC; such power cannot be exercised routinely merely at the asking of one party, but only where (a) the application is bona fide, (b) the evidence will assist in rendering justice, and (c) production at a later stage is justified for valid and sufficient reasons and is not a protracting tactic.ratio¶31

Detailed headnote1 paragraphs

High Court of Himachal Pradesh, Shimla (Bipin Chander Negi, J., oral) — CMPMO No. 924 of 2019, decided 03.04.2025. Petition under Article 227 of the Constitution of India by the defendant (Amar Nath) challenging the order dated 30.09.2019 of the Civil Judge, Barsar, passed on his application objecting to recording of the evidence of the respondent/plaintiff's witnesses (Manprit Sharma and Kanshi Ram, who appeared on 1.11.2018) on the ground that the plaintiff's evidence had been closed on 1.1.2015. Held: (i) the contention that no additional issues were framed after amendment of the plaint under Order 6 Rule 17 CPC was without force, since issue No.2 (framed 17.02.2014) already covered a mandatory injunction for demolition of construction raised during the pendency of the suit and restoration of the suit land; (ii) the power under Order 18 Rule 17 CPC is to be used sparingly, only to clarify doubts or clear ambiguity, and cannot be used to fill lacunae/omissions in evidence already recorded or to permit further examination-in-chief or additional evidence (relying on Vadiraj Naggappa Vernekar, 2009 (4) SCC 410; K.K. Velusamy, 2011(11) SCC 275; Ram Rati, 2016 (11) SCC 296); (iii) there being no specific provision in the CPC for reopening evidence, recourse lies to Section 151 CPC, exercisable only where the application is bona fide, the evidence will assist in rendering justice, later production is justified for valid and sufficient reasons, and it is not a protracting tactic; (iv) Article 227 jurisdiction is restricted and limited to correcting grave dereliction of duty, flagrant abuse, miscarriage of justice, unreasonable conclusions or perversity, and does not extend to reviewing or re-weighing evidence or substituting conclusions (relying on Sadhana Lodh, (2003)3 SCC 524; Garment Craft, (2022) 4 SCC 181). Petition dismissed; pending miscellaneous applications disposed of; parties directed to appear before the trial Court on 23rd April, 2025.

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMPMO No. 924 of 2019 Decided on: 03.04.2025

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____________________________________________________ Amar Nath ……….. petitioner Versus
Kanshi Ram ……….respondent
____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?¹
For the petitioner : Mr. Uday Singh Banyal, Advocate.
For the respondent : Mr. Tarun K. Sharma, Advocate.
____________________________________________________ Bipin Chander Negi, Judge (oral)

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The present petition has been filed seeking the

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following relief:-

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“That the present petition may very kindly be allowed by setting aside the impugned order passed by the learned Civil Judge Barsar dated 30.09.2019 Annexure P-1 in the ends of justice.”

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The respondent in the case at hand had filed a suit seeking permanent prohibitory injunction and mandatory injunction. The mandatory injunction claimed was with respect to any construction raised on the suit land during the pendency of the suit. Issues in the case at hand were framed on 17.02.2014. The relevant issue for the present controversy is issue No.2, the

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same is reproduced here-in-below for a ready reference:-

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2. Whether the plaintiff is also entitled for the decree of mandatory injunction directing the

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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defendant to demolish the construction and to restore the suit land to its original position in case defendant succeeds in raising any construction over the suit land during the pendency of the suit? OPP

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Subsequent to the framing of the issues, evidence of

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the plaintiff was completed on 1.1.2015. On 20.04.2015, the case was listed for the evidence of the present petitioner/defendant. Thereafter on 19.08.2015, the present petitioner/defendant produced his witnesses and filed their evidence. After the filing of the aforesaid evidence by way of affidavits on behalf of the petitioner/defendant, an application under Order 6 Rule 17 CPC was filed.

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By virtue of the said application, the respondent/plaintiff intended to amend the plaint in order to place on record subsequent developments qua illegal construction raised by the present petitioner/defendant during the pendency of the suit. The same was allowed vide order dated 22.07.2016 on account of the fact that the nature and character of the suit by virtue of the amendments being made was not being altered, all facts sought to be incorporated had come into existence during the pendency of the suit. Other than the aforesaid, the Court was of the view that in order to avoid multiplicity of litigation and to effectually adjudicate the controversy in the case at hand, the amendment as sought by the present respondent was necessary.

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Subsequent to the allowing of the aforesaid

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amendment, written statement to the amended plaint was filed on 20.10.2016 and replication thereto was filed on 1.3.2017. On 24.5.2017 since issues had already been framed especially issue No.2, which has been reproduced hereinabove, no additional issues were required to be framed. Besides the aforesaid on 24.05.2017, PWs were ordered to summoned. Thereafter, the matter was listed on 18.9.2017, 15.1.2018, 6.6.2018 for recording the evidence of the plaintiff’s witnesses. Finally on 1.11.2018, two witnesses i.e. Manprit Sharma and Kanshi Ram had appeared in Court for recording of their evidence on behalf of the present respondent/plaintiff.

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At this stage, the petitioner objected to recording of their evidence by stating that the evidence of the respondent/plaintiff had been closed on 1.1.2015. Qua the objection raised, an application had been filed by the petitioner/respondent on 28.11.2018. Order dated 30.09.2019 passed on the said application has been impugned by way of the present petition.

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Heard counsel for the parties.

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The first contention advanced on behalf of the

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learned counsel appearing on behalf of the petitioner is that no additional issues were farmed in the case at hand. From a perusal of the issues framed on 17.2.2014, especially issue No.2 framed therein, which has been reproduced hereinabove, it is

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evident that with respect to construction being raised during the pendency of the suit, an issue qua grant of mandatory injunction in favour of the present respondent/plaintiff for demolishing the construction so raised in order to restore the suit land to its original position has already been framed. Hence, the argument raised is without any force.

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Insofar as the argument w.r.t. Order 18 Rule 17 CPC is concerned, it would be appropriate to refer to the same. Order 18 Rule 17 of the Civil Procedure Code reads as follows:-

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“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 question to him as the Court thinks fit.”

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The power under Order 18 Rule 17 of the Civil Procedure Code is to be used sparingly. The same cannot be allowed on the ground that no prejudice would be caused to the parties. It can only be permitted to clarify doubts or clear any ambiguity. It cannot be used to fill up lacunae/omissions in the evidence already recorded. Under the garb of Order 18 Rule 17 of the Civil Procedure Code, no witness can be called for further examinationin-chief or to place additional evidence which could not be produced when the evidence was being recorded. Reference in this regard can be made to 2009 (4) SCC 410 titled as Vadiraj Naggappa Vernekar through LRs vs. Sharadchandra Prabhakar Gogate, 2011(11) SCC 275 titled

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as K.K. Velusamy vs. Palanisamy and 2016 (11) SCC 296 titled as Ram Rati vs. Mange Ram (dead) through Legal Representatives and other.

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There exists no specific provision in the Code of Civil Procedure for reopening of the evidence. In this respect, resort can be had to Section 151 CPC. Exercise of such power cannot be done routinely, merely at the asking of one of the parties. The same can only be exercised (a) when it is found to be bona fide, (b) the evidence will assist in rendering justice (c) production at a later stage is justified for valid and sufficient reasons and the same should not be a protracting tactic.

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In this respect, it would be appropriate to refer to case reported as (2011) 11 SCC 275 titled as K.K Velusamy vs. Palanisamy . Relevant extract whereof reads as under:-

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“11. There is no specific provision in the Code enabling the parties to cross-examination. Section 151 of the Code provides that nothing in the Code b reopen the evidence for the purpose of further examination-in-chief or shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for reopening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under Section 151 of c the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express 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.”

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19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that nonproduction earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.”

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The present petition has been filed under Article 227 of the Constitution of India. This Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. On the other hand in the supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. In this respect, a reference can be made to (2003)3 SCC 524 titled as Sadhana Lodh vs. National Insurance Co. Limited and another and (2022) 4 SCC 181 titled as Garment Craft vs. Prakash Chand Goel.

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On the aforesaid settled principles, no case for interference by this Court in its supervisory jurisdiction has been made out. Therefore, present petition is dismissed. Pending miscellaneous applications, if any also stand disposed of.

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Parties are directed to appear before the trial Court on 23^rd April, 2025. Record be sent back forthwith.

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(Bipin Chander Negi) Judge

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April 03, 2025 tarun

Issues for consideration

4 issues framed by the court

AI extract

1.
Whether the order dated 30.09.2019 passed by the learned Civil Judge, Barsar on the petitioner's application (objecting to recording of evidence of the respondent/plaintiff whose evidence had been closed on 1.1.2015) should be set aside in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.¶19
The court held
On the settled principles, no case for interference by this Court in its supervisory jurisdiction was made out; the petition was dismissed, pending miscellaneous applications were disposed of, and the parties were directed to appear before the trial Court on 23rd April, 2025 with the record to be sent back forthwith.ratio¶37
2.
Whether the trial court erred in proceeding without framing additional issues after amendment of the plaint, given that issue No.2 framed on 17.02.2014 already covered the mandatory injunction for demolition of construction raised during the pendency of the suit.¶22
The court held
The contention that no additional issues were framed is without force: with respect to construction raised during the pendency of the suit, issue No.2 framed on 17.02.2014 already covered grant of a mandatory injunction in favour of the respondent/plaintiff for demolishing the construction so raised and restoring the suit land to its original position.ratio¶24
3.
Whether the respondent/plaintiff's witnesses could be examined after closure of the plaintiff's evidence on 1.1.2015 — scope of the power under Order 18 Rule 17 CPC and the inherent power under Section 151 CPC to recall witnesses or reopen evidence.¶27
The court held
The power under Order 18 Rule 17 CPC is to be used sparingly; it can only be permitted to clarify doubts or clear any ambiguity, and cannot be used to fill up lacunae/omissions in evidence already recorded or, under its garb, to call a witness for further examination-in-chief or to place additional evidence which could not be produced when evidence was being recorded.ratio¶27
4.
Scope of interference available to the High Court under Article 227 of the Constitution of India against orders of the civil court.¶35
The court held
Under Article 227 of the Constitution of India this Court has a restricted and limited corrective jurisdiction, exercisable only to set right grave dereliction of duty, flagrant abuse or violation of fundamental principles of law or justice, miscarriage of justice, unreasonable conclusions and perversity; reviewing or re-weighing evidence, substituting conclusions, or correcting every error of fact or even a legal flaw where the final finding is justified or supportable is not permissible.ratio¶35

Amar Nath v. Kanshi Ram

Case brief

What is this about?

What did the court decide?

Amar Nath v. Kanshi Ram

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

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