2003(2) ALL MR 444
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M.S. KHANDEPARKAR, J.

Shri. Balkrishna Shivappa Shetty Vs. Shri. Mahesh Nenshi Bhakta & Ors.

Writ Petition No.6215 of 2002

10th February, 2003

Petitioner Counsel: Shri. P.N. PATWARDHAN
Respondent Counsel: Shri. D.L. RAJDA, Shri. S.V. RAJA

Civil P.C. (1908), O.18, R.17 and S.151 - Recalling of witness - Inherent Powers of Court - O.18, R.17 does not empower the Court to allow a Party to cross examine a witness by recalling such witness - Inherent powers not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.

In the instant case, since the provisions of law contained in Order 18, Rule 17 of the Code though nowhere empowers the Court to allow a party to cross-examine a witness by recalling such witness, and the impugned order having been passed in exercise of the provisions contained in Order 18, Rule 17, the same is unsustainable and is liable to be set aside. The contention that such powers can be exercised under Section 151 of the Code may be true in a given case provided the materials on record justify such order. As already observed above, in this case, mere failure on the part of the respondent Nos.1 to 3 to take appropriate steps at appropriate time in relation to Exhibit-5, that will not enure to their benefit to seek the assistance of the Court for exercise of its inherent powers under Section 151 to enable the party to fill the lacuna in evidence. Besides, it should not be forgotten that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code, as has been ruled by the Apex Court in Padam Sen and another Vs. The State of Utter Pradesh, reported in AIR 1961 SC 218. The impugned order therefore cannot be justified under Section 151 as there is no material on record to warrant exercise of powers under Section 151 to allow the respondent Nos.1 to 3 to recall the defendant No.1 for the purpose of further cross-examination. AIR 1984 SC 931 - Rel.on. [Para 11]

Cases Cited:
Madhubhai Amthalal Vs. Amthalal Nanalal, AIR (34) 1947 Bombay 156 [Para 3,6]
Steelage Industries Limited Vs. Smt. Chander Bagai, AIR 1992 Bombay 406 [Para 3,7]
Sultan Saleh Bin Omer Vs. Vijayachand Sirmal, AIR 1966 A.P. 295 [Para 3,7]
P.S. Pandian Vs. Annai Velanganni Films represented by its partner, Mrs. Savithri Devaraj, Chennai, (2002)2 Mh.L.J. 591 [Para 3,8]
Dahya Lala Vs. Rasul Mahomed Abdul Rahim, AIR 1964 SC 1320 [Para 4]
Vadivelu Vs. Sundaram, (2000)8 SCC 355 [Para 4]
Prabhudas Narayan Gedam Vs. Municipal Council, Bhadrawati, 2002 ALL MR (Cri) 107=2003(1) Mh.L.J. 275 [Para 4]
Smt. M.M. Amonkar Vs. Dr. S.A. Johari, AIR 1984 SC 931 [Para 9]
Padam Sen Vs. The State of Uttar Pradesh, AIR 1961 SC 218 [Para 11]


JUDGMENT

JUDGMENT :- Heard the learned Advocates for the parties. Perused the records. Rule. By consent, rule is made returnable forthwith.

2. The petitioner challenges the order dated 17-9-2002 passed by the trial Court allowing the application filed by the respondent Nos.1 to 3 for recall of the defendant No.1 in the suit for the purpose of cross-examination on behalf of the respondent Nos.1 to 3. The order is purportedly passed in exercise of powers under Order 18, Rule 17 of the Code of Civil Procedure, 1908, hereinafter referred to as "the Code".

3. Placing reliance in two decisions of this Court one in the matter of Madhubhai Amthalal Vs. Amthalal Nanalal and others, reported in AIR (34) 1947 Bombay 156, and Steelage Industries Limited and another Vs. Smt. Chander Bagai, reported in AIR 1992 Bombay 406, the learned Advocate for the petitioner has submitted that the trial Court has no jurisdiction to recall the witness for the purpose of cross-examination by either of the parties and the jurisdiction under Order 18, Rule 17 of the Code is limited for the purpose of examination of the witness by the Court itself when such examination of the witness is found to be necessary by the Court. On the other hand, placing reliance in the decisions of the Andhra Pradesh High Court in Sultan Saleh Bin Omer Vs. Vijayachand Sirimal, reported in AIR 1966 A.P. 295, and of the Madras High Court in P.S. Pandian Vs. Annai Velanganni Films represented by its partner, Mrs. Savithri Devaraj, Chennai and another, reported in (2002)2 M.L.J. 591, it was sought to be contended that in the interest of justice the Court is empowered to permit the parties to cross-examine a witness on being recalled and such a relief can also be granted by the Court by exercising its jurisdiction under Section 151 of the Code and therefore no fault can be found with the impugned order, apart from the fact that the impugned order is an interlocutory order and the petitioner is not entitled to seek interference of this Court in the impugned order in writ jurisdiction.

4. As regards interference by this Court in the impugned order in writ jurisdiction, it is well settled by a catena of decisions of the Apex Court as well as of this Court including the decisions of the Apex Court in the matter of Dahya Lala and others Vs. Rasul Mahomed Abdul Rahim and others, reported in AIR 1964 SC 1320, Vadivelu Vs. Sundaram and others, reported in (2000)8 SCC 355, and of the learned single Judge of this Court in Prabhudas Narayan Gedam and others Vs. Municipal Council, Bhadrawati, reported in 2003(1) Mh.L.J. 275 : (2002 ALL MR (Cri) 107), that in case of illegal exercise of jurisdiction as also when there is an error of jurisdiction of violation of the law laid down by the Supreme Court or the High Court, interference in writ jurisdiction under Article 227 of the Constitution is well justified. In the case in hand, it would be therefore necessary to ascertain whether the provisions of law in Order 18, Rule 17 of the Code can be invoked to prevent a party to the suit to recall the witness for the purpose of cross-examination? If not, whether the facts and the circumstances of the case warrant grant of such a relief in exercise of inherent powers under Section 151 of the Code?

5. The provisions of law contained in Order 18, Rule 17 of the Code provide that the Court may, at any stage of the suit, recall any witness who has been examined and may, subject to law of evidence for the time being in force, put such question to him as the Court thinks fit. The said provision of law apparently does not deal with the subject of allowing the parties to cross-examine the witness after such witness being recalled in exercise of powers thereunder. In other words, the provisions contained in Order 18, Rule 17 of the Code do not empower the Court to recall the witness for the purpose of cross-examination by either of the parties though it does permit recall of witnesses for the purpose of examination by the Court itself. Apparently, by ordering recall of the defendant No.1 for the purpose of further cross-examination on behalf of the respondent Nos.1 to 3 purportedly in the exercise of powers under Order 18, Rule 17 of the Code, the trial Court has clearly acted in error of jurisdiction as well as contrary to the provisions of law contained in the said rule.

6. The learned single Judge of this Court in Madhubhai Amthalal's case (supra), after considering the scope of Order 18, Rule 17 of the Code has observed that: "It is noticeable that the wording of it is at any stage of a "suit" and not at any stage of a "hearing", and if, therefore, the Court, while considering its judgment, found that there was an ambiguity on the face of the record, or an omission which wanted clearing up, I think the Court could, in a proper case, recall a witness, who had given evidence, for that purpose." It has been further held that: "Anyhow, the power, assuming that it exists, to hear this evidence at this stage under O.18, R.17, is clearly, discretionary as appears from the use of the word "may" not once but twice, in the course of that rule; and granted, as I think is the case, that the power exists, it is one which I think ought to be exercised with the greatest care and only in the most peculiar circumstances. "It has been held that the right of the Court to act under the rule is not restricted to action of its own motion, and can be exercised at the instance of either of the parties to the suit. However, it is nowhere held that the power under the said rule can be exercised to allow the parties to cross-examine the witnesses by recalling them.

7. In Steelage Industries Limited's case (supra), the learned single Judge of this Court, after observing that a stage of finality must be imported to each segment of the proceedings and if a degree of firmness is not insisted upon, the litigants and their counsel may feel encouraged to make multifarious applications for recalling witnesses and thereby take the case virtually in circles. As this would be in breach of the existing provisions of law and also could lead to the protraction of the litigation, it was held that such powers must be sparingly exercised in exceptional cases. Referring to the decision of the Andhra Pradesh High Court in Sultan Saleh Bin Omer (supra), it has been observed that: "The Court has taken a rather unusual view in that case where, at a very late stage, an application was made for additional evidence and the Court sanctioned such evidence, holding that it was permissible under the inherent powers embodied in S.151 of the Code of Civil Procedure." Certainly to read down the provisions of law in Rule 17 of Order 18 to include right to recall the witness for cross-examination would virtually result in encouraging protraction of litigation.

8. In P.S. Pandian's case (supra) the Madras High Court, considering that the party was seeking to produce documents in terms of Order 13, Rule 2 of the Code, as was in force then, and wanted to satisfy the Court with regard to his bona fide for production of the document at a subsequent stage, allowed the parties to lead further evidence by recalling him in exercise of powers under Order 18, Rule 17 of the Code, observing that the said powers can be exercised liberally to meet the ends of justice. Apparently the point as to whether such power under the said rule can be exercised for the purpose of allowing the parties to examine or cross-examine the witnesses was not at all raised in the said decision of the Madras High Court, and therefore the decision is of no help in the matter in hand.

9. It is also to be noted that the Apex Court in Smt. M.M. Amonkar and others Vs. Dr. S.A. Johari, reported in AIR 1984 SC 931, has held that the power under Order 18, Rule 17 of the Code is to be exercised in exceptional circumstances. Inspite of the fact that the rule does not empower the Court to recall the witness for the purpose of cross-examination by the respondent Nos.1 to 3, the Court below clearly acted illegally in granting such relief under Order 18, Rule 17 of the Code. It is also sought to be contended that even though such a relief could not be granted under Order 18, Rule 17 of the Code, nothing prevents the trial Court from allowing the cross-examination of the witness by recalling him in exercise of inherent powers under Section 151 of the Code.

10. Undisputedly, the defendant No.1 was sought to be recalled for the purpose of cross-examination as certain documents came to be produced on record in the form of Exhibit-5 while the defendant No.2 was in the witness box and who was examined after the conclusion of the testimony of the defendant No.1. It is not in dispute that the documents which were placed on record in the form of Exhibit-5 were not relied upon by the parties and they came on record in the course of cross-examination of the defendant No.2 without there being any objection being raised for the production of such documents by the respondent Nos.1 to 3. There is nothing on record to disclose any justification for failure on the part of the respondent Nos.1 to 3 for not raising any objection for the production of such documents in the course of cross-examination of the defendant No.2, inspite of the fact that the said documents were neither relied upon by the defendant No.2 nor were produced for the inspection of the respondent Nos.1 to 3 prior to the production of the said documents on record. Can mere inaction or failure on the part of the respondent Nos.1 to 3 to object the production of such documents in the course of recording of the evidence justify the exercise of inherent powers by the Court under Section 151 of the Code, to enable the respondent Nos.1 to 3 to cross-examine the defendant No.1 in relation to such documents by recalling the defendant No.1? Mere such lapse on the part of the party or his counsel would not entitle the party to seek the assistance of the Court to get the witness recalled and cross-examined at the sweet will of such a party.

11. As already observed above, since the provisions of law contained in Order 18, Rule 17 of the Code though nowhere empowers the Court to allow a party to cross-examine a witness by recalling such witness, and the impugned order having been passed in exercise of the provisions contained in Order 18, Rule 17, the same is unsustainable and is liable to be set aside. The contention that such powers can be exercised under Section 151 of the Code may be true in a given case provided the materials on record justify such order. As already observed above, in this case, mere failure on the part of the respondent Nos.1 to 3 to take appropriate steps at appropriate time in relation to Exhibit-5, that will not enure to their benefit to seek the assistance of the Court for exercise of its inherent powers under Section 151 to enable the party to fill the lacuna in evidence. Besides, it should not be forgotten that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code, as has been ruled by the Apex Court in Padam Sen and another Vs. The State of Utter Pradesh, reported in AIR 1961 SC 218. The impugned order therefore cannot be justified under Section 151 as there is no material on record to warrant exercise of powers under Section 151 to allow the respondent Nos.1 to 3 to recall the defendant No.1 for the purpose of further cross-examination.

12. In the result, therefore, the petition succeeds. The impugned order is hereby set aside. The Court below to proceed with the suit in accordance with the provisions of law. Rule is made absolute accordingly with no order as to costs.

Petition allowed.