Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment reserved on: 28 July, 2015
th
Judgment delivered on: 11 August, 2015
+ FAO (OS) 398/2015
ARB INC .... Appellant
versus
UNITED INDIA INSURANCE CO LTD & ORS …. Respondents
&
CM No. 13150/2015
+ FAO (OS) 399/2015 and
ARB INC .... Appellant
versus
UNITED INDIA INSURANCE CO LTD & ORS
…. Respondents
Advocates who appeared in this case:
For the Petitioners : Mr Suhail Dutt, Sr Advocate with Mr Ravi S. Mittal, Mr Ankur
Manchanda, Ms Karishma Singhania and Ms Azhaa Alam,
Advocates
For the Respondent: None
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGEMENT
SANJEEV SACHDEVA, J
1. Since, these two appeals arise out of orders in the same suit, they are
being taken up for disposal together. FAO (OS) 399/2015 impugns order
FAO(OS) 398-399/2015 Page 1 of 8
dated 19.09.2014 passed in OA No. 186/2014 arising out of order dated
29.08.2014 passed by the Joint Registrar closing the right of the
appellant/plaintiff to further cross examine the Defendant Witness DW-1.
FAO (OS) 398/2015 impugns the order dated 17.03.2015 passed in OA No.
96/2015 arising out of order dated 23.02.2015 passed by the Joint Registrar
dismissing the application filed by the appellant under order 18 rule 17
seeking recall of DW-1 for cross examination.
2. On 29.08.2014, the Joint Registrar, noticing that repeated
adjournments were being sought by the counsel for the plaintiff to cross
examine DW-1, closed the right of the plaintiff to cross examine DW-1. The
Joint Registrar noticed that, on 26.11.2012, DW-1 was partly cross
examined and thereafter a request was made by the counsel for the plaintiff
for an adjournment. The cross examination was deferred to 06.05.2013.
However, on the said date there was a request for adjournment as the senior
counsel for the plaintiffs who had to cross examine DW-1 was not available.
The cross examination was thereafter deferred to 07.11.2013 on which date
again a request for adjournment was made as the senior counsel was not
available. Thereafter the case was adjourned to 15.04.2014 on which date
yet again an adjournment on the same ground was sought. Thereafter the
case was adjourned to 29.08.2014 on which date again the counsel for the
plaintiff was not available and an adjournment slip was moved. In view of
the earlier adjournments sought by the plaintiffs, the joint registrar was of
the view that sufficient opportunities had been given to the plaintiff to cross
FAO(OS) 398-399/2015 Page 2 of 8
examine the witness DW-1 and the plaintiff had failed to cross examine the
said witness. The opportunity to cross-examine DW-1 was closed.
3. Impugning the order dated 29.08.2014 passed by the Joint Registrar,
the appellant/plaintiff filed chamber appeal OA No. 186/2014. The chamber
appeal was dismissed by the court on 19.09.2014, noticing the conduct of the
plaintiff in failing to cross-examine DW-1 on five occasions. The court
refused to interfere with the order passed by the Joint Registrar and the OA
was dismissed with costs of Rs. 25,000/-.
4. The plaintiffs instead of impugning the order dated 19.09.2014
dismissing the chamber appeal, on 14.02.2015 after a gap of about 5 months
filed an application under Order 18 Rule 17 of the Code of Civil Procedure
seeking recall of DW-1 for cross examination. The said application was
dismissed by the Joint Registrar by order dated 23.02.2015 on the ground
that the rights of the plaintiff to cross examine DW-1 stood closed and the
appeal against the order closing the right also stood dismissed and the
plaintiff could not bypass the said orders and in an indirect method seek to
cross examine DW-1.
5. Impugning the order dated 23.02.2015 whereby the application under
Order 18 rule 17 had been dismissed, the appellant filed the chamber appeal
No. OA 96 of 2015. The chamber appeal has also been dismissed by the
learned single judge by order dated 17.03.2015 which order is impugned in
FAO 398/2015. The learned single judge has noted the conduct of the
Plaintiff and the failure of the Plaintiff to cross examine DW-1 on five
FAO(OS) 398-399/2015 Page 3 of 8
occasions and has also noted the dismissal of the earlier chamber appeal
filed by the Plaintiff confirming the order closing the right of the Plaintiff to
cross examine DW-1. Learned single Judge has thus dismissed the chamber
appeal and confirmed the order dismissing the application under order 18
rule 17.
6. By the impugned order, the Learned Single Judge held that though
powers under order 18 rule 17 are wide and the court is empowered to recall
a witness at any stage, but the rule does not permit the recalling of any
witness for the purposes of reexamination or cross examination to fill up any
lacunae in the trial. The learned Single Judge held that the rule does not
confer any right on a party to recall a witness where proper opportunities had
been given to cross examine the witness. Learned Single Judge held that the
application seems to be an endeavour to bypass the orders passed earlier in
the chamber appeal.
7. The learned Single Judge held that the chamber appeal was not
maintainable as the earlier order had become final with respect to further
cross examination of the witness and the appeal was an endeavour to
overcome previous appellate order by way of a second round of applications
seeking to set aside the closure of the right to cross examine the witness.
8. We are in complete agreement with the orders passed by the Joint
Registrar and the Learned Single Judge impugned in both the appeals.
Perusal of the record reveals that not only one but five opportunities have
been availed of by the plaintiff for the purposes of cross examination of
FAO(OS) 398-399/2015 Page 4 of 8
DW-1. The witness was made to travel to court on five occasions for cross
examination and on each occasion a request for adjournment was made on
behalf of the Plaintiff on the ground that the counsel was not available. DW-
1 was partly cross examined on 26.11.2012 and thereafter an adjournment
was sought by the counsel for the plaintiff. Thereafter on four occasions i.e.,
06.05.2013, 07.11.2013, 15.04.2014 and 29.08.2014 adjournments were
sought on the ground that the counsel was not available. The joint registrar
has noticed that sufficient opportunity was given to the plaintiff to cross
examine DW-1 and the cross was not conducted. The chamber appeal filed
by the plaintiff impugning the order passed by the joint registrar closing the
right to cross examine DW-1 was dismissed. We are in agreement with the
view formed by the joint registrar that sufficient opportunities had been
granted to the plaintiff to cross examine DW-1 and for no valid reason DW-
1 was not cross examined. Unavailability of the counsel on five occasions
cannot be a ground to defer the cross examination of a witness. In our view
also sufficient opportunities had been granted to the plaintiff to cross
examine, the opportunities have not been availed of and rightly the right to
cross examine has been closed. We find no reason to interfere with the view
taken by the single judge in confirming the order of the joint registrar
closing the right to cross the witness.
9. If the Plaintiff was aggrieved by the order dated 19.09.2014, the
plaintiff should have filed an appeal impugning the same in the first
instance, however the plaintiff chose not to file an appeal and kept silent for
FAO(OS) 398-399/2015 Page 5 of 8
over 10 months. The plaintiff instead filed an application under order 18 rule
17.
10. Order 18 rule 17 is as under:
17. Court may recall and examine witness.- 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 questions to him as the court thinks fit.
11. Order 18 Rule 17 of the Code enables the court, at any stage of a suit,
to recall any witness who has been examined (subject to the law of evidence
for the time being in force) and put such questions to him as it thinks fit. The
power to recall any witness under Order 18 Rule 17 can be exercised by the
court either on its own motion or on an application filed by any of the parties
to the suit requesting the court to exercise the said power. The power is
discretionary and should be used sparingly in appropriate cases to enable the
court to clarify any doubts it may have in regard to the evidence led by the
parties. The said power is not intended to be used to fill up omissions in the
evidence of a witness who has already been examined. Order 18 Rule 17 of
the Code is not a provision intended to enable the parties to recall any
witnesses for their further examination-in- chief or cross-examination or to
place additional material or evidence which could not be produced when the
evidence was being recorded. Order 18 Rule 17 is primarily a provision
enabling the court to clarify any issue or doubt, by recalling any witness
either suo moto, or at the request of any party, so that the court itself can put
questions and elicit answers. Once a witness is recalled for purposes of such
FAO(OS) 398-399/2015 Page 6 of 8
clarification, it may, of course, permit the parties to assist it by putting some
1
questions.
12. The power under Order 18 Rule 17 is to be sparingly exercised and in
appropriate cases and not as a general rule merely on the ground that the
recall and re-examination of a witness would not cause any prejudice to the
parties.
13. Once the right to cross examine DW-1 has been closed by way of a
speaking order and the said order has been confirmed in a chamber appeal,
the plaintiff could not have sought the right to cross examine DW-1 by way
of an application under order 18 rule 17. Even the application was moved
after over five months of the closure of the right to cross examine. This
clearly shows the lackadaisical attitude of the plaintiff. Order 18 rule 17
cannot be used by the plaintiff to circumvent the orders passed by the court
specifically closing the right to cross examine DW-1. The joint registrar by
order dated 23.02.2015 has rightly dismissed the application under order 18
rule 17 and the impugned order dated 17.03.2015 confirming the order of the
joint registrar and holding that the application under 18 rule 17, in these
circumstances, was not maintainable does not suffer from any infirmity.
14. We find no reason to take a view different from the view taken in both
the impugned orders, one confirming the order of closure of right to cross
examine and the other confirming the order dismissing the application under
1
K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275
FAO(OS) 398-399/2015 Page 7 of 8
order 18 rule 17. We are in complete agreement with both the impugned
orders.
15. The appeals are without any merit and are accordingly dismissed.
Leaving the parties to bear their own costs.
CM 13150/2015 in FAO (OS) 399/2015 (application seeking condonation
of delay of 271 days in filing the appeal)
Since we have already on merits held that the application under order
18 rule 17 is not maintainable, the explanation that the appellant did not file
an appeal as the appellant had filed an application under order 18 rule 17 and
was awaiting the decision on the same, in our view, would not constitute
sufficient cause for condoning the delay in filing the appeal. In the said
circumstances the application is also dismissed.
SANJEEV SACHDEVA, J
BADAR DURREZ AHMED, J
August 11, 2015
RS
FAO(OS) 398-399/2015 Page 8 of 8