Smt. Sudha Rani vs Life Insurance Corporation of India

Harbans Lal, J.—This revision petition it directed against the order of the Subordinate Judge, First Class, Jullundur, dated January 19, whereby two witnesses of the Plaintiff- Petitioner have been ordered to be recalled for the purpose of further cross-examination

The Plaintiff Petitioner filed a suit for the recovery of Rs. 80,000/- from the Defendant-Respondent Life Insurance Corporation of India (hereinafter to be called the Corporation) in lieu of the insurance policy of her husband Shri Amar Nath Mittal, after his death. The suit was contested by the Corporation After the framing of issues, witnesses were examined by the Plaintiff Petitioner. The Plaintiff herself also appeared as her own witness All of them had been subjected to cross examination on behalf of the Corporation. Thereafter, the Corporation also examined a number of witnesses and closed its evidence. Subsequent thereto, on December 10, 1979, a petition was filed on behalf of the Corporation under order XVIII Rule 17, read with Section 151, Code of Civil Procedure, (hereinafter called the Code), for re-calling the Plaintiff Petitioner and her witness Dr. Jugal Kishore for further cross exam nation on behalf of the Corporation. This application was contested by the Plaintiff-Petitioner. However, the same has been allowed by the trial court As a consequence, both the Plaintiff-Petitioner and Dr. Jugal Kishore, have been re-called for further cross-examination This order is the subject matter of the present revision petition.

The learned Counsel for the Petitioner, has assailed the impugned order on two grounds. Firstly that the same is outside and beyond the scope of Order XVIII Rule 17 of the Code, and secondly, that both these witnesses who have been ordered to be recalled, had been subjected to through and exhaustive cross-examination and have been sought to be recalled only for the purpose of filling up the lacunae for which the trial Court had no jurisdiction to allow the application and order re-calling of witnesses for further cross-examination.

As regards the first contention, there is no dispute that under Order XVIII Rule 17 of the Code, the witnesses whose statements have been recorded cannot be re-called for the purpose of further cross-examination by the opposite party and the jurisdiction of the Court to re-call any witness can be exercised only where the Court thinks it fit and in the interest of justice to put some further questions to the witness for the purpose of any clarification. This provision cannot be resorted to for the purpose of further cross examination of witness by the opposite party. The learned Counsel for the Respondent, frankly and fairly conceded that this provision cannot be made use of for this purpose. However, it has been urged by him that this provision does not stand in the way of re calling any witness, for Further cross examination by the opposite party, by the Court in the exercise of its inherent power u/s 151 of the Code to support of this proposition, reliance has been placed on Naba Kumar Dass v. Rudra Narayan Jana AIR 1923 P.C. 95, Sultan Saleh Bin Omer Vs. Vijayachand Sirimal, Chairman Notified Area Council and Another Vs. Kudini Lingaraju Patra, and Shankar Bhat v. Bheema Bhat A.I.R 1974 Kar 123.

In Naba Kumar Das''s case (Supra), some documents were produced by the opposite party after a witness had already been examined. A contention was raised that this witness should be disbelieved as his deposition was inconsistent with the said document. It was held that a witness cannot be disbelieved without his attention being drawn to the document inconsistent with his statement in the witness box and for this purpose, the application could be filed for recalling him for further cross-examination In Sultan Saleh Bin Omer''s case (supra), it was held that Order XVIII Rule 17 of the Code cannot be pressed into service for re calling a witness for cross examination by a party, but a witness can be ordered to be recalled for providing an opportunity of further cross-examination to the party by the Court in the exercise of its inherent jurisdiction u/s 151 of the Code if the circumstances so warrant.

In Padam Sen and Another Vs. The State of Uttar Pradesh, , it was held that the inherent powers of the Court u/s 151 of the Code are complementary to the powers specifically conferred by the Code and the Court is free to exercise the same in the interest of justice where its exercise is net in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature.

Relying on the same, it was held in Kudini Lingaraju Patra''s case and Shankara Bhat''s case (supra) that in the exercise of the inherent powers of the court, a witness can be recalled for farther cross-examination by a party.

From an analytical scrutiny of the above decisions, it is quite evident that the exercise of inherent jurisdiction of the Court u/s 151 of the Code, is intended to advance the in erects of justice. This provision is, in the very nature of things unrestricted in scope, but as held in the Supreme Court decision, referred to above, where There is a specific provision, resort could not be had to the inherent powers of the Court and it could not be exercised in a manner so as to be in conflict with the same

9 So far as the present case is concerned, the Respondent was not entitled to pray for recalling of witnesses for further cross examination under Order XVIII Rule 17 of the Code, as under this provision, only the Court can put questions to a witness to elicit some Information or for any clarification.

A perusal of the order of the trial court also makes it evident that the two witnesses were recalled for cross examination, and the application of the Defendant Respondent was allowed in this regard "the interest of justice" and not under Order VIII Rule 17 of the Code In such a situation, it needs consideration as to whether the circumstances of the case warranted the exercise of the inherent power of the Court to recall the two witnesses who had been already cross-examined.

It is the case of the Defendant-Respondent Corporation that after the death of Amar Nath Mittal Plaintiff Shrimati Sudha Rani, his wife, claimed an amount of Rs. 80,000/- as, according to her, husband, who had a life insurance policy from the Corporation, had died an account of an electric shock. As a result of enquiry, the Corporation came to the conclusion that the death of the said Amar Nath Mittal was as a result of suicide, and her claim was not agreed to. As a consequence, the suit out of which the pre sent revision petition has arisen, was filed Before the filing of the suit, during investigation, inquest had been held by A.S.I Tilak Raj, u/s 174, Code of Criminal Procedure and in this regard, the statement of Shrimati Sudha rani, Plaintiff Petitioner was also recorded by him which was signed by her. In the said statement, according to the learned Counsel for the Corporation, it had been disclosed that the said Amar Nath Mittal had died by hanging. However, Shrimati Sudha Rani, in her statement in the present case, clearly stated that her statement had not been recorded by the police during investigation.

The contention of the learned Counsel for the Respondent,is that the statement of Shrimati Sudha Rani, as rocorded by A.S.I. Tilak Raj which forms Dart of the inquest report, is a material and important document to establish the case of the Corporation and to contradict the statement of Shrimati Sudha Rani, recorded during the trial of the suit, but the same cannot be used unless she is confronted with the same

13 Regarding the other witness, Dr. Jugal Kishore, it was urged, that this witness performed the post mortem examination on the dead body of Amar Nath Mittal At the trial, he deposed in his statement that the said Amar Nath Mittal was alleged to have died of electric current shock. In the post mortem report, submitted by him also, it was mentioned in the column, " information furnished by police ", that the deceased was alleged to have died of electric current shock, but in the inquest report by A.S.I Tilak Raj, different opinion had been expressed.

The case of the Respondent it that the doctor could not be cross examined adequately as the inquest report was not available and the record pertaining to the investigation and enquiry by the said A.S.I which contained the inquest report was not traceable at the time these two witnesses had been cross-examined. It was also urged that at one stage, the Plaintiff-Petitioner had filed an application to summon the said investigation record, but the matter was not pressed, with the result, the record was not summoned. Inspite of the best efforts made on behalf of the Corporation, this record could not be traced. It was only at a later stage that it was discovered that the record was in the Court of the Sub Divisional Magistrate concerned and it was then that this record was secured through Shri Banarsi Dass, D.W.I and placed on the record of this case

As against this the case of the Plaintiff-Petitioner, as strenuously put forth by the learned Counsel is, that Shri Amar Nath Mittal died on October 29, 1972 and his post mortem was conducted by Dr. Jugal Kishore on October 30, 1972. The Plaintiff-Petitioner having made claim of the insurance amount, the Corporation made full enquiries into the matter and the claim was refused on November 26,1976. The Petitioner, thus had no alternative but to file the suit. During the trial, the statement of Shrimati Sudha Rani, Plaintiff peti tioner, was recorded on August 31, 1977, and that of Dr. Jugal Kishore on April 5, 1978, both of them were subjected to thorough cross-examination on behalf of the Corporation. After the Plaintiff had closed her evidence, the Corporation also examined a number of witness and closed its evidence It was at that stage that the application under Order XVIII Rule 17 read with Section 151 of the Code for recalling of these two witnesses was filed as late as December 10, 1979. It is urged that it was in the knowledge of the respondeat that investigation including the inquest had been held by the police relating to the death of the said Amar Nath Mittal and if the Corporation wanted to rely on the inquest report or any other proceedings relating to investigation, It ought to have taken proper steps to get the record summoned or to obtain certified copy of the inquest report before cross-examining these two witnesses According to the learned Counsel, extraordinary and inordinate delay in making this application is, by itself, a sufficient ground to reject the same and not to allow the two witnesses to be recalled.

The trial Court, after considering the respective contentions on both sides, thought it fit to order recalling of these two witnesses for the purpose of cross examination by the Respondent in the interest of justice. It has been observed by the trial Court that the file relating to the inquest, when produced, was found to be damaged and mutilated at many places and was even eaten by white-ants Certified copies of the inquest report regarding legible portions of the said file were consequently brought on the record, According to the statement of Naresh Kumar Chopra, D.W 3, Higher-grade Assistant, Life Insurance Corporation of India, complete Inquest report along with the statements of the witnesses were not produced by Shrimati Sudha Rani before him when he was conducting enquiry pertaining to her claim arising out of the death of Shri Amar Nath Mittal. It is not disputed by the learned Counsel for the Petitioner that the file pertaining to the inquest report was produced from the office of the Sub-Divisional Magistrate on the application submitted on behalf of the Defendant Respondent. This file according to the natural course of things and under the provisions of the Code of Criminal Procedure, was not expected to remain in the office of the Sub Divisional Magistrate. Keeping all these facts and circumstances into view, the trial Court did not find any merit in the plea of extraordinary negligence on the part of the respondeat so as to disentitle it to recall the two witnesses. One of the witnesses recalled is the Plaintiff-Petitioner herself who is sought to be cross examined only with reference to her previous statement recorded by the A.S.I during inquest proceedings. The other witness, namely, Dr. Jugal Kishore, as contended by the learned Counsel for the Respondent, has to be further cross examined in view of the investigation proceedings and the inquest report by the A.S.I. In these circumstances, there is no basis for the contention of the learned Counsel for the Petitioner, that further cross examination of these two witnesses will result in any prejudice to the case of the Plaintiff-Petitioner Both these witnesses will have full opportunity to offer the necessary explanation in cross examination.

The trial Court has exercised the discretion in view of all the facts and circumstances of the case, and no case is made out to come to the conclusion that this direction was exercised arbitrarily or capriciously.

Consequently, there is no merit in the revision petition which is dismissed with no order as to costs.