The High Court disposed of two civil revision petitions challenging orders allowing applications to reopen evidence and recall a witness in a partition suit.
Civil Revision Petitions dismissed. Connected Miscellaneous Petition closed. First respondent directed to restrict questions to specific grounds.
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.
CRP(MD).Nos.2537 and 2538 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.07.2023
CORAM
THE HON'BLE MR.JUSTICE C.KUM A R A P P A N
CRP(PD) (MD).Nos.2537 and 2538 of 2018 and CMP(MD).No.11156 of 2018
Poolachi
Petitioner in both CRPs
Vs.
1.Ajithkumar
2.Balakrishnan Respondent in both CRPs
COMMON PRAYER: Civil Revision Petitions under Article 227 of the Constitution of India to call for the records and set aside the fair and decreetal order, dated 23.10.2018 in I.A.Nos.1008 and 1009 of 2018 in O.S.No.375 of 2011 on the file of the Additional District Munsif Court, Manapparai.
For Petitioner : Mr.H.Lakshmi Sankar in both CRPs
For Respondent No.1: Mr.Raguvaragopalan in both CRPs
CRP(MD).Nos.2537 and 2538 of 2018
COMMON ORDER
These Civil Revision Petitions have been filed to call for the records and set aside the fair and decreetal order, dated 23.10.2018 made in I.A.Nos.1008 and 1009 of 2018 in O.S.No.375 of 2011, on the file of the Additional District Munsif Court, Manapparai.
CRP(MD).Nos.2537 and 2538 of 2018
put up some important questions with regard to the relationship between the defendants 1 and 2. Such applications were resisted by the revision petitioner / second defendant on the ground that the recall and reopen petitions filed with a hidden agenda. However, the learned Trial Judge, allowed the applications, in the interest of justice. Aggrieved with the said orders, the second defendant / 2nd respondent has come up with the present Civil Revision Petitions.
petitioner herein vehemently submits that Order 18 Rule 17 CPC postulates allowing the application for recall only when the Court reaches the conclusion that there is ambiguity in the evidence, which need to be clarified. In this case, the learned Trial Judge, has not recorded any reason. In support of his contention, the learned counsel appearing for the petitioner also relied on Judgment of the Hon'ble Supreme Court reported in 2016(4) LW 447 in the case of (Ram Rati Vs. Mange Ram (d) Through Lrs and others), wherein at, paragraph Nos.11 and 12 it is held as follows:
11. The respon de nt file d the application un der Rule 17 rea d with Section 151 of the CPC invoking the inherent powers of the court to make or der s for the en ds of
CRP(MD).Nos.2537 and 2538 of 2018
justice or to prevent abuse of the process of the court. The basic purpose of Rule 17 is to enable the court to clarify any position or d oubt, an d the court may, either suo motu or on the request of any party, recall any witness at any stage in that regar d . This power can be exercise d at any stage of the suit. No d oubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification require d or permitte d by the court. The power un der Rule 17 cannot be stretche d any further. The sai d power cannot be invoke d to fill up omission in the evi dence alrea dy le d by a witness. It cannot also be use d for the purpose of filling up a lacuna in the evi dence . ‘No preju dic e is cause d to either party’ is also not a permissible groun d to invoke Rule 17. No d oubt, it is a d iscretionary power of the court but to be use d only sparingly, an d in case, the court de ci des to invoke the provision, it shoul d also see that the trial is not unnecessarily protracte d on that groun d .
12. In Vadiraj Nagappa Vernkar (dead) Through Lrs. V. Sharadchandra Prabhakar Gogate (2009-5-L.W.52 = (2009) 4 SCC 410] this principle ahs been summarized at paragraphs 25, 28 and 29;
“25. In our view, though the provision of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. Xxxxxx
28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme of intention of Order 18 Rule 17 CPC.
29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but
CRP(MD).Nos.2537 and 2538 of 2018
to clear any ambiguity that may have arisen during the course of his examination.”
would invite the attention of this Court on the Ruling and would submit that the basic purpose of Rule 17 of Order 18 is to enable the Court to clarify any position or doubt, and the Court may either suomotu or on the request of any party, recall any witness at any stage in that regard. The learned counsel also would submit that recall cannot be used to fill up lacunae and such power has to be exercised only sparingly.
respondent / plaintiff would submit that the very order passed by the learned Trial Judge has contain reason as to how the learned Judge has come to the conclusion in exercise of his discretionary power and therefore, nothing to interfere with the order passed by the learned trial Judge.
the learned counsel appearing on either side and perused the materials available on record.
CRP(MD).Nos.2537 and 2538 of 2018
CRP(MD).Nos.2537 and 2538 of 2018
Therefore, this Court is of the view that though the order of the learned Trial Judge has not contain any reason, except by referring to allow the applications, in the interest of justice, this Court do not want to interfere with the order passed by Court below as this Court recorded merits in these revisions. Hence, these Civil Revision Petitions are dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
31.07. 2023
Index : Yes / No Internet : Yes / No trp
CRP(MD).Nos.2537 and 2538 of 2018
To
The Additional District Munsif Court, Manapparai.
CRP(MD).Nos.2537 and 2538 of 2018
C.KUM A R A P P A N , J.,
trp
CRP(MD).Nos.2537 and 2538 of 2018 and CMP(MD).No.11156 of 2018
31.07.2023
2 issues framed by the court
Whether to interfere with the trial court's order allowing an application under Order 18 Rule 17 CPC to recall a witness without specific reasons alongside Section 151 of the CPC.
Whether the application to recall the witness was filed to fill lacunae in evidence rather than to clarify ambiguities.
Colour shows how this judgement treated each authority
Ram Rati Vs. Mange RamReferred¶26
2016(4) LW 447
Vadiraj Nagappa Vernkar V. Sharadchandra Prabhakar GogateReferred¶31
2009-5-L.W.52 = (2009) 4 SCC 410 · Who else cites this
3 provisions across 2 enactments
Poolachi
Ajithkumar
Balakrishnan
C.KUM A R A P P A N
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
