Smt. Krishana vs Smt. Vimal Chopra

Kamlesh Sharma, J.—Petitioner Smt. Krishana is aggrieved by the order dated 16-12-1991 passed by Rent Controller, Shimla whereby her application u/s 151, CPC for recalling her to appear as her own witness, has been dismissed.

The background in which the Petitioner had filed the above said application is, that on the petition filed by Respondent landlady Smt. Vimal Chopra, an eviction order dated 20-8-1988 was passed against the Petitioner, ex parte. She moved an application dated 6-5-1989 for setting aside the ex parte, which is being resisted by the Respondent-landlady. The Rent Controller, Shimla has framed issues thereon and recorded evidence adduced by the parties. The Petitioner appeared as her own witness as OBW-2. Her examination-in-chief was recorded on 8-3-1991 and thereafter on 5-4-1991 she was put to cross-examination During her statement in cross-examination documents Ex R-1 to R-4 were put to her and she was asked whether signatures thereon were her''s or not. She replied in negative.

Ex. R-1 is an affidavit accompanying the stay application filed along with the application under Order 9, Rule 13, CPC where as. Ex R-2 is the power of attorney given by the Petitioner in favour of her counsel appearing on her behalf in the said application. Similarly, Ex. R-3 is an affidavit which was filed in support of application under Order 9, Rule 13, CPC and Ex. R-4 is a copy of special power of attorney executed by the Petitioner in favour of Shri Gauri Dutt, who appeared as OBW-1, for pursuing application under Order 9, Rule 13, CPC on her behalf.

Now, the Petitioner has moved an application u/s 131, Code of Civil Procedur for recalling her as her own witness. The ground made in the application for making such a prayer is that. "The objector Smt. Krishana Devi who is an illiterate and simpleton village lady in her cross-examination denied her signatures on the Power of Attorney given by her to her counsel, special power of attorney given by her to her husband''s younger brother Shri Gauri Dutt for conducting this case and also her signatures on the application under Order 9 Rule 13, CPC moved by her counsel under great mental depression after seeing her fictitious signatures on registered A.D. cover which was never signed by her."

This application is resisted by the Respondent-landlady. The Rent Controller has dismissed this application by order dated 16-12-1991. The Rent Controller has refused to exercise his discretion under Order 18 Rule 17, CPC on the ground, inter alla, that this will amount to giving an opportunity to the Petitioner for filling in the lacuna left by her in her statement. He has also held that the effect of denial of her signatures on these documents will be seen by him at the time the application under Order 9 Rule 13, CPC is decided.

I have heard the learned Counsel for parties and gone through the records. This is well settled that under Order 18 Rule 17 CPC the Court has been empowered to recall any witness who has been examined and put such questions to him as the Court thinks fit. But it is a judicial discretion and it is to be exercised on some valid and cogent reasons, such as, to clear the ambiguity which has crept in the statement already recorded or to bring on record a document having material bearing on the decision of the case which could not be brought on record inadvertently etc. etc. But certainly discretion under Order 18 Rule 17 CPC should not be exercised to help a party to fill up the lacuna in its case. For taking this view, this Court is supported by the judgments in Altaf Hussain Vs. Nasreen Zahra, Savithri v. Sreenivasan 1987 (2) KLT 388, Smt. Kamavva v. Adavxbhavi Hanumantappa and Ors. 1989 (2) CCC 440 and State of H.P. v. Sita Ram 1972 SLJ 131 HP.

While explaining the import of Order 18 Rule 17 CPC in Altaf Hussain v. Nasreen Zahra, the learned Judge of Allahabad High Court has said:

This Rule provides the Court with a power which is necessary for the proper conduct of a case. If it appears to a court trying the suit at any stage of the proceedings that it is necessary to recall and further examine a witness it can always do so. This power can be exercised even at the stage of writing a judgment by the court. It is, however, proper that this power should not be exercised lightly and the rule is that it should be used sparingly and in exceptional cases only. The power Is to be used for removing ambiguities, for clarifying the statement and not for the purposes of filling up the lacuna in a party''s case. It is true that the power can be exercised by the Court at its own initiative and may even be so done at the instance of a party. Section 165 of the Evidence Act provides that a Judge may in order to discover or obtain proper proof of relevant facts, ask any question he pleases in any form at any time of any witness about any fact relevant The section further provides that the parties shall not be entitled to make any objection to any such question, nor cross-examine any witness upon any answer given in reply of the Court. If the provisions of Order XVIII Rule 17 are read along with the provisions of Section 165 of the Evidence Act it is clear that the power to recall and re-examine a witness is exclusively that of the court trying the suit. The parties to the suit cannot take any objection to the question asked nor can they be permitted to cross-examine any witness without the leave of the court.

Similar view was adopted by the learned Judge of Kerala High Court in Savithri v. Sreenivasan. It was emphasised that the discretionary powers to recall a witness ought to be exercised with the greatest care, very sparingly and only in exceptional circumstances. So far the judgment in State of H.P. v. Sita Ram, is concerned, it lays down that a witness can be recalled to produce a document if the court comes to the conclusion that the document has direct bearing on the decision of the case and it has not been brought on record by a party inadvertently. But the purpose of getting the document produced on record by recalling a witness is also to clarify the ambiguity in respect of a fact which in the opinion of the court is relevant for determination of the dispute. The ratio of this judgment does not apply in the present case in which the Petitioner does not want her to be recalled to bring on record any document but to admit her signatures on documents Ex. R-1 to R-4 and to explain under which circumstances she bad denied them as not her''s.

So far the present case is concerned, this Court is of the opinion that the Rent Controller, Shimla has rightly refused to exercise its discretion tinder Order 18 Rule 17 Code of Civil Procedure. There is no ambiguity in the statement of Smt. Krishna as she has first admitted that she could recognise her signatures and thereafter she has denied that the signatures on documents Ex. R-1 to R-4 are not her''s. There is no substance in the argument addressed by the learned Counsel for the Petitioner that at the relevant time due to mental depression the Petitioner could not identify her signatures. There is nothing on record to show that she was suffering from such an ailment earlier or there was any reason for her to feel mentally depressed at the relevant time. As noticed above, her statement in examination-In-chief was recorded almost one month earlier to the date when she was cross-examined.

It is not correct to say that since she was shown the Registered cover on which her fake signatures were made by somebody, she got upset and she denied her signatures on all the documents put to her. So far as the Registered A/D cover is concerned, it was put to her in the beginning of her statement in cross-examination and thereafter she had replied number of questions put to her correctly. She was confronted with the signatures on documents Ex. R-1 to Ex. R-4 almost at the end of her statement in cross-examination and earlier part as well as latter part of her statement does not show that she was in any manner upset and was not in fit mental condition to reply. As such this Court holds that there is no ambiguity in the statement of the Petitioner for which she was required to be recalled by the Rent Controller as prayed by her. The Rent Controller has not acted illegally or with material irregularity in exercise of his jurisdiction in dismissing the application of the Petitioner.

In the result, the revision petition fails and it is dismissed, but there is no orders as to cost. The record be sent immediately. The parties are directed to appear before the Rent Controller, Shimla on 20th July, 1992.