Full Judgment Text
VADIRAJ NAGGAPPA VERNEKAR (D) THROUGH LRS.
V.
SHARAD CHAND PRABHAKAR GOGATE
Civil Appeal No. 1172 of 2009
FEBRUARY 24, 2009
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]
The Judgement of the Court was delivered by
ALTAMAS KABIR, J.
1. Leave granted.
2. The short question for decision in this appeal is whether a witness having
been examined by way of affidavit evidence can be recalled for giving further
evidence with regard to facts not mentioned in the affidavit.
3. The aforesaid question arises in respect of a suit filed by one Vadiraj
Naggappa Vernekar and Smt. Mainabai Ranade, being Suit No. S.925 of 1990,
before the learned Single Judge of the Bombay High Court, seeking a declaration
that the Letters of Administration obtained by one Sharadchandra Prabhakar Gogate
on 5
th
November, 1998, in respect of the estate of Dr. Sudha Gogate, was not
binding on the plaintiffs or any of them and did not affect their right, title and interest
in the suit property, being Flat no.402, situated in Amogh Vikram Cooperative
Housing Society Ltd., Murari Ghag Marg, Prabhadevi, Bombay 400025. Vadiraj
Naggappa Vernekar died during the pendency of the suit and his legal
representatives were brought on record in his place. The appellant No.1, being the
wife of the deceased, was made plaintiff no.1A and his sons and daughters were
made plaintiff Nos.B, C and D respectively.
4. One Sadanand Sheshgiri Shet, who was alleged to be a witness to all the
transactions relating to the said flat, was appointed as Constituted Attorney by the
appellant and the other heirs of deceased Vadiraj Naggappa Vernekar and as
required under Order 17 Rule 4 CPC, his evidence by way of an affidavit was filed
before the learned Single Judge. While the evidence was still being recorded in the
suit, the appellant and the other plaintiffs moved Notice of Motion No.463 of 2006
before the learned Single Judge on 13
th
February, 2006, urging that certain facts
which were necessary for proper adjudication of the suit had inadvertently been left
out in the affidavit affirmed by Sadanand Shet and that it was, therefore, necessary
to recall him for further examination-in-chief under the provisions of Order 18 Rule 17
CPC. By order dated 7
th
July, 2006, the learned Single Judge dismissed the said
Motion upon holding that the witness could not be recalled to fill up the lacuna in his
examination-in-chief on affidavit. Appeal No.853 of 2006 filed by the appellant herein
was dismissed in limine by the Division Bench of the High Court on 1
st
December,
2006, confirming the order of the learned Single Judge. The present appeal, by
st
December,
2006.
leave, has been filed against the order of the Appeal Court dated 1
5. Learned Senior Advocate, Mr. P.S. Narasimha, who appeared for the
appellant, briefly submitted that the provisions of Order 18 Rule 17 CPC were very
wide and could be made at any stage to enable the Court to do complete justice
between the parties. For the sake of reference, the provisions of Order 18 Rule 17
CPC are reproduced hereinbelow:-
“17. Court may recall and examine witness. –
The Court may, at any stage of suit, recall any witness who has been examined
and may (subject to the law of evidence for the time being in force), put such
questions to him as the Court thinks fit.”
6. Mr. Narasimha also submitted that it has been held by way of judicial
pronouncements that the Court may recall and examine a witness not only suo motu
but also on an application that may be made by the parties to the suit. Learned
counsel also submitted that the affidavit of evidence of Sadanand Shet had been
prepared by the learned advocate, who had inadvertently left out certain vital facts
which were necessary for a complete and proper adjudication of the suit. He urged
that on account of the omission of the learned counsel, the plaintiffs/appellants
herein should not be made to suffer since the evidence of Sadanand Shet went to
the very root of the issues to be decided in the suit. Mr. Narasimha also submitted
that although the cross-examination of the witness on affidavit had been completed,
the defendants could always be permitted to re-examine the witness on the fresh
evidence that would be adduced. Mr. Narasimha also submitted that while ensuring
that proper justice was done between the parties, allowing the recall of Sadanand
Shet would not in any way prejudice the defendants.
7. In support of his aforesaid submissions, Mr. Narasimha firstly referred to the
decision of this Court in Smt. M.N. Amonkar & Ors. Vs. Dr. S.A. Johari (1984 (2)
SCC 354), wherein this Court, while considering the scope of Article 227 in dealing
with an application under Order 18 Rule 17 CPC, came to a finding that unless the
reasons given by the Trial Court in rejecting an application under Order 18 Rule 17
CPC can be said to be moonshine, flimsy or irrational, the rejection of the application
cannot be dubbed as suggestive of non-judicial approach or bias or partiality on the
part of the Trial Court merely because in the exercise of its discretion another Court
might have taken a different view and allowed the application. Mr. Narasimha
submitted that, in other words, an application under Order 18 Rule 17 CPC should
not be rejected as a matter of course, unless it was shown that such an application
was moonshine, flimsy or irrational.
8. Mr. Narasimha then referred to a Single Bench decision of the Madras High
Court in S.S.S. Durai Pandian Vs. Samuthira Pandian (AIR 1998 Mas 323) in which
it had been held that under Order 18 Rule 17 CPC, the Court could not only recall a
witness on its own but also on an application made by the defendants. Similar views
were expressed by the Himachal Pradesh High Court in the case of Satinder Singh
Vs. Sukhdev (AIR 1999 HP 72) and by the Punjab & Haryana High Court in the case
of Om Prakash Vs. Sarupa & Ors. (AIR 1981 P&H 157).
9. In this regard, Mr. Narasimha also referred to another Single Bench decision
of the Rajasthan High Court in Jodhpur Gums & Chemicals Pvt. Ltd. Vs. Punjab
National Bank & Ors. (AIR 1999 Raj. 38), wherein while expressing the same views
as expressed in the above-mentioned matters, it was also observed that by allowing
such an application for recall of a witness, no prejudice could be caused to the
defendants as, apart from being compensated by costs, they would also have the
opportunity to cross-examine the witness.
10. On the basis of the above, Mr. Narasimha submitted that the orders of the
learned Single Judge, as also the Division Bench, were passed on an erroneous
understanding of the law and were liable to be set aside.
11. Strongly opposing the submissions made on behalf of the appellants, Mr.
Shivaji M. Jadhav, learned Advocate, submitted that as has been held by the learned
Single Judge and subsequently confirmed by the Division Bench, the application
made under Order 18 Rule 17 CPC was nothing but an attempt to fill up the lacunae
in the evidence of Sadanand Shet after his examination had been completed. He
urged that it is settled law that an application under Order 18 Rule 17 CPC could not
be allowed when the deponent, while preparing his affidavit evidence, had full
knowledge of all the facts which were now being proposed to be included in his
evidence, and that the same had been held to be impermissible. Mr. Jadhav also
contended that the power under Order 18 Rule 17 CPC, though giving wide power to
the Court to recall any witness at any stage of a suit in order to examine him/her,
was also meant to be exercised sparingly so that after the examination and cross-
examination of a witness, the said witness was not utilized for filling up the gaps in
the evidence of the witness which had been elicited during cross-examination.
12. Mr. Jadhav submitted that both the learned Single Judge as well as the
Division Bench of the High Court had rightly dismissed the appellants’ application
under Order 18 Rule 17 CPC and the orders did not merit any interference.
13. In support of his submissions, Mr. Jadhav referred to a Single Bench
decision of the Allahabad High Court in Sunder Theaters Vs. Allahabad Bank, Jhansi
(AIR 1999 All. 14), where a similar question arose and the Court observed that the
power of the Court under Order 18 Rule 17 CPC is discretionary and has to be
exercised with the greatest care and only in exceptional circumstances. It was further
observed that under the garb of this rule, the Court ought not to recall a witness at
the instance of a party in order to fill up a lacuna in the evidence already led.
14. Mr. Jadhav, therefore, submitted that the application filed by the appellants
under Order 18 Rule 17 CPC had been rightly rejected by the Courts below following
the well-established principles as to invocation of power by a Court under Order 18
Rule 17 CPC.
15. Having heard learned counsel for the respective parties, we are unable to
agree with Mr. Narasimha that both the Single Judge and the Division Bench of the
High Court had erred in rejecting the appellants’ application under Order 18 Rule 17
CPC since, according to Mr. Narasimha, no prejudice would be caused to the
respondent as he would be given a chance of cross-examination after re-
examination-in-chief by the plaintiff.
16. In our view, though the provisions 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. As indicated by the learned Single Judge,
the evidence now being sought to be introduced by recalling the witness in question,
was available at the time when the affidavit of evidence of the witness was prepared
and affirmed. It is not as if certain new facts have been discovered subsequently
which were not within the knowledge of the applicant when the affidavit evidence
was prepared. In the instant case, Sadanand Shet was shown to have been actively
involved in the acquisition of the flat in question and, therefore, had knowledge of all
the transactions involving such acquisition. It is obvious that only after cross-
examination of the witness that certain lapses in his evidence came to be noticed
which impelled the appellant to file the application under Order 18 Rule 17 CPC.
Such a course of action which arises out of the fact situation in this case, does not
make out a case for recall of a witness after his examination has been completed.
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 or intention of Order 18 Rule 17 CPC.
17. 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 to clear any ambiguity that may have arisen during
the course of his examination. Of course, if the evidence on re-examination of a
witness has a bearing on the ultimate decision of the suit, it is always within the
discretion of the Trial Court to permit recall of such a witness for re-examination-in-
chief with permission to the defendants to cross-examine the witness thereafter.
There is nothing to indicate that such is the situation in the present case. Some of
the principles akin to Order 47 CPC may be applied when a party makes an
application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within
the Court’s discretion, if it deems fit, to allow such an application. In the present
appeal, no such case has been made out.
18. We, accordingly, have no hesitation in dismissing the appeal, but
without any order as to costs. The appeal is accordingly dismissed.