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Judgment
Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties.
The petition seeks to quash and set aside the order dated 30.09.2023 passed by the learned 5th Joint Civil Judge, Junior Division, Pusad, in Regular Civil Suit No. 38 of 2012, and further seeks rejection of the application dated 14.06.2023 filed by respondent Nos. 2-A to 2-E, whereby the petitioner has been recalled for the purpose of cross-examination.
Facts, as emerging from the petition, are as under:
The petitioner instituted S.C.S. No. 42/2006 before the learned Civil Judge, Senior Division, Pusad, seeking partition and separate possession in respect of agricultural land bearing old Survey No. 34/1, new Survey No. 34/3, admeasuring 1 H 21 R, and house property bearing No. 202-1 situated at Village Bori (Khurd), Pusad, District Yavatmal. During pendency of the suit, despite an injunction order, respondent No. 1/ Original Defendant No.1 executed a sale deed dated 01.04.2005 in favour of respondent No. 2/Original Defendant No.2 for consideration of Rs.85,000/-. The respondent No. 2 was consequently impleaded and a declaration was sought that the said sale deed was null and void and not binding upon the petitioner. Subsequently, pursuant to the order dated 27.02.2012 passed by the learned District Court, the suit was renumbered as R.C.S. No.38/2012.
The case of the petitioner was that the suit properties were ancestral properties of respondent No.1, which had fallen to his share in a partition between him and his three brothers. respondent No.1 had a son, namely Maroti, who was the husband of the petitioner and who died on 08.12.2004. Thereafter, respondent No.1 allegedly harassed the petitioner and insisted upon her signing documents for disposal of the suit properties, and on her refusal, drove her out of the matrimonial house. The petitioner claimed her share in the suit properties. The defendants, however, denied her claim and contended that the properties were self-acquired by respondent No.1 from his earnings as a labourer.
Respondent No.1 specifically contended that his son, namely Maroti, was a labourer himself and a bachelor and died on 08.12.2004. Respondent No.2 claimed to have purchased the agricultural land from respondent No.1 for valuable consideration, as respondent No.1 was in need of money for repayment of his loan. Accordingly, respondent No. 2 purchased suit land by register Sale Deed. To substantiate the suit, petitioner deposed and relied on the sale deed dated 01.04.2005.
By the judgment dated 19.11.2012, the learned Trial Court declared the sale deed executed by respondent No.1 in favour of respondent No.2 in respect of the suit land to be null and void and not binding upon the petitioner. The Trial Court further declared that the petitioner was entitled to 1/10th share in the suit agricultural land. Aggrieved thereby, respondent No.2 preferred Regular Civil Appeal No.1/2013 before the learned District Judge-3, Pusad. In the said appeal, an objection was raised regarding non-joinder of necessary parties, particularly the legal heirs of the concerned parties, and it was contended that the suit for partition could not have been decided in their absence.
By judgment dated 05.03.2019, the learned Appellate Court partly allowed the appeal and remanded the matter to the Trial Court. The petitioner was directed to amend the plaint and implead her son as a party, and the legal heirs of respondent Nos.1 and 2 were also brought on record. The Appellate Court further directed the Trial Court to afford fresh opportunity of hearing to the parties and to decide the suit on the basis of the evidence already recorded and such further evidence as may be adduced after remand. Pursuant thereto, the plaint was amended and the petitioner's son was added as Plaintiff No.2, while the legal heirs of the defendants were impleaded.
After remand, the petitioner closed her evidence by filing a pursis dated 06.05.2023 below Exhibit 133. Thereafter, respondent Nos.2-A to 2-E filed an application below Exhibit 134 seeking recall of Plaintiff No.1 for further cross-examination. The petitioner opposed the said application, pointing out that she had already entered the witness box and had been cross-examined by the respondents on 07.01.2011, and that she did not desire to lead any further evidence. Despite the said objection and the evidence already recorded, the learned Trial Court, by order dated 30.09.2023 below Exhibit 134, allowed the application and directed to recall the petitioner for cross-examination.
Aggrieved by the said order, the petitioner has approached this Court under Article 226 and 227 of the Constitution of India.
I have heard Mr. P.P. Deshmukh, learned Counsel for the petitioner, as also, Mr. R. M. Tahaliyani, learned Counsel for respondent No. 2-A.
Learned Counsel for the petitioner submitted that the impugned order directing recall of the petitioner for further cross-examination is contrary to the scope of Order XVIII Rule 17 of the Code of Civil Procedure. The power to recall a witness is discretionary and is required to be exercised sparingly, only when the Court finds such recall necessary for clarification of any doubt arising from the evidence already on record. It was contended that the said provision cannot be invoked to fill up omissions or lacunae in the evidence of a witness who has already been examined and cross-examined.
Learned Counsel further submitted that petitioner had filed her evidence by way of affidavit on 24.06.2008 and was already cross-examined by the defendants on 07.01.2011. After remand, she filed a pursis below Exhibit 133 on 06.05.2023 and adopted her earlier evidence. However, the learned Trial Court failed to consider this material aspect and, without recording any cogent reason demonstrating the necessity of further cross-examination, allowed the application below Exhibit 134. The impugned order is therefore perverse, arbitrary and suffers from non-application of mind.
It was also submitted that the principles of natural justice require a fair opportunity to all parties, but such principle does not confer an unrestricted right upon the defendants to repeatedly cross-examine a witness. The petitioner has already entered the witness box and subjected herself to cross-examination, and she does not desire to lead any further evidence. Learned Counsel contended that the present application for recall, filed at a belated stage, is an attempt to prolong the proceedings and to fill up deficiencies in the defence, particularly when the suit is pending since 2004.
I have considered the contentions canvassed by the learned Counsel for the respective parties and also gone through the record of the matter with their able assistance. The order which is impugned in the present petition is passed on an application filed by the respondent herein under the provisions of Order XVIII Rule 17 of the Code of Civil Procedure. As can be seen from the said order, the power has been exercised, which as per the settled principles of law is a discretionary power. The fact is that on remand, the son of defendant No. 1 is added as a defendant in the suit. This fact assumes importance in the matter. As held by the Hon’ble Supreme Court in the judgment of K.K. Velusamy vs. N. Palanisamy, reported in *2011) 11 SCC 275. There is no specific provision in the Code enabling the parties to reopen the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise effect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of Court. In the absence of any provision providing for reopening of evidence or recall of any evidence for further examination or cross-examination for purposes other than securing clarification required by the Court, the inherent powers under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall the witness for further examination.
The learned Counsel for the petitioner has relied upon various judgments. First of which is Vidyawati vs. Man Manmohan reported in1995 (5) SCC 431. The said judgment, however, is not applicable since in the said matter, scope of Order XXII Rule 4(2) and Order I Rule 10 is discussed.
In another judgment reported in 2009 (4) SCC Page 410, Vadiraj Naggappa Vernekar vs. Sharad Chand Prabhakar, in fact, supports the case of the respondent herein, since the Hon’ble Apex Court holds that 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 cross-examine the witness.
In another judgment, in 2013 (14) SCC, 1, M/s. Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai vs. M/s. Gupta Building Mterial Store, the facts were altogether different, since it was a suit for recovery and two applications were filed before the Trial Court to overcome the lacunae in the plaint. This is not in the matter at hand.
In the next judgment relied upon by the learned Counsel for the petitioner in WP No. 8335 of 2023, of this Court, in the matter of Vaijanti Wd/o Pradeep Kakirwar and others vs. Dr. Seema W/o arun Mankar and others. It was held that as the deceased defendant has already cross-examined the plaintiff, no illegality is committed by the Trial Court as well as the Appellate Court in rejecting prayers of petitioners to cross-examine the plaintiff.
In the next judgment reported in 2022 (293) DLT 116, Smt. Shashi Sehdev vs. Sh. Narender Kumar Sharma, it is held that the recall of a witness is not to be permitted to fill up omission in the evidence already led by the witness, or to fill up any lacuna.
In the last judgment in SLP (C) 2744–2746/2024, K. Bharathamma vs. Bandaru Sakku Bai and & Ors., the same proposition of law is repeated as it is a well established principle of law that powers under Order XVII Rule 17 of the Code of Civil Procedure cannot be exercised as of course. There cannot be any dispute about this proposition of law. However, as can be seen from the order of the Trial Court that it has went on to record that in view of the remand and in view of the fact that there is an addition in the array of defendant pursuant to the said remand, the application is allowed. There is nothing on record to show that the discretion as exercised by the Trial Court under Order 18 Rule 17, as also under Section 151, which is a residuary power, is perverse in nature. In that view of the matter, there is no merit in the petition. It warrants dismissal. It is accordingly dismissed. Rule is discharged.