VADIRAJ NAGGAPPA VERNEKAR (D) THROUGH LRS. V.

SHARAD CHAND PRABHAKAR GOGATE Civil Appeal No. 1172 of 2009

FEBRUARY 24, 2009 [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

The Judgement of the Court was delivered by

ALTAMAS KABIR, J.

1. Leave granted.  

2. The short question for decision in this appeal is whether a witness having  been  examined  by  way  of  affidavit  evidence  can  be  recalled  for  giving  further  evidence with regard to facts not mentioned in the affidavit.  

3.  The  aforesaid  question  arises  in  respect  of  a  suit  filed  by  one  Vadiraj  Naggappa Vernekar  and Smt.  Mainabai  Ranade,  being  Suit  No.  S.925  of  1990,  before the learned Single Judge of the Bombay High Court, seeking a declaration  that the Letters of Administration obtained by one Sharadchandra Prabhakar Gogate  on  5th November,  1998,  in  respect  of  the  estate  of  Dr.  Sudha Gogate,  was  not  binding on the plaintiffs or any of them and did not affect their right, title and interest  in  the  suit  property,  being  Flat  no.402,  situated  in  Amogh  Vikram  Cooperative  Housing  Society  Ltd.,  Murari  Ghag  Marg,  Prabhadevi,  Bombay  400025.  Vadiraj  Naggappa  Vernekar  died  during  the  pendency  of  the  suit  and  his  legal  representatives were brought on record in his place. The appellant No.1, being the  wife of the deceased, was made plaintiff no.1A and his sons and daughters were  made plaintiff Nos.B, C and D respectively.

4. One Sadanand Sheshgiri Shet, who was alleged to be a witness to all the  transactions relating to the said flat, was appointed as Constituted Attorney by the  appellant  and  the  other  heirs  of  deceased  Vadiraj  Naggappa  Vernekar  and  as  required under Order 17 Rule 4 CPC, his evidence by way of an affidavit was filed  before the learned Single Judge. While the evidence was still being recorded in the  suit, the appellant and the other plaintiffs moved Notice of Motion No.463 of 2006  before the learned Single Judge on 13th February, 2006, urging that certain facts  which were necessary for proper adjudication of the suit had inadvertently been left  out in the affidavit affirmed by Sadanand Shet and that it was, therefore, necessary  to recall him for further examination-in-chief under the provisions of Order 18 Rule 17  CPC. By order dated 7th July, 2006, the learned Single Judge dismissed the said  Motion upon holding that the witness could not be recalled to fill up the lacuna in his  examination-in-chief on affidavit. Appeal No.853 of 2006 filed by the appellant herein  was dismissed in limine by the Division Bench of the High Court on 1st December,  2006,  confirming the order  of  the  learned Single  Judge.  The present  appeal,  by

leave, has been filed against  the order of  the Appeal  Court  dated 1st December,  2006.  

5.  Learned  Senior  Advocate,  Mr.  P.S.  Narasimha,  who  appeared  for  the  appellant, briefly submitted that the provisions of Order 18 Rule 17 CPC were very  wide and could be made at any stage to enable the Court to do complete justice  between the parties. For the sake of reference, the provisions of Order 18 Rule 17  CPC are reproduced hereinbelow:-

“17.  Court may recall and examine witness. –

The Court may, at any stage of 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.”

6.  Mr.  Narasimha  also  submitted  that  it  has  been  held  by  way  of  judicial  pronouncements that the Court may recall and examine a witness not only suo motu  but also on an application that may be made by the parties to the suit.  Learned  counsel also submitted that the affidavit of evidence of Sadanand Shet had been  prepared by the learned advocate, who had inadvertently left out certain vital facts  which were necessary for a complete and proper adjudication of the suit. He urged  that  on  account  of  the  omission  of  the  learned  counsel,  the  plaintiffs/appellants  herein should not be made to suffer since the evidence of Sadanand Shet went to  the very root of the issues to be decided in the suit. Mr. Narasimha also submitted  that although the cross-examination of the witness on affidavit had been completed,  the defendants could always be permitted to re-examine the witness on the fresh  evidence that would be adduced. Mr. Narasimha also submitted that while ensuring  that proper justice was done between the parties, allowing the recall of Sadanand  Shet would not in any way prejudice the defendants.  

7. In support of his aforesaid submissions, Mr. Narasimha firstly referred to the  decision of this Court in Smt. M.N. Amonkar & Ors. Vs. Dr. S.A. Johari (1984 (2)  SCC 354), wherein this Court, while considering the scope of Article 227 in dealing  with an application under Order 18 Rule 17 CPC, came to a finding that unless the  reasons given by the Trial Court in rejecting an application under Order 18 Rule 17  CPC can be said to be moonshine, flimsy or irrational, the rejection of the application  cannot be dubbed as suggestive of non-judicial approach or bias or partiality on the  part of the Trial Court merely because in the exercise of its discretion another Court  might  have  taken  a  different  view  and  allowed  the  application.  Mr.  Narasimha  submitted that, in other words, an application under Order 18 Rule 17 CPC should  not be rejected as a matter of course, unless it was shown that such an application  was moonshine, flimsy or irrational.  

8. Mr. Narasimha then referred to a Single Bench decision of the Madras High  Court in S.S.S. Durai Pandian Vs. Samuthira Pandian (AIR 1998 Mas 323) in which  it had been held that under Order 18 Rule 17 CPC, the Court could not only recall a  witness on its own but also on an application made by the defendants. Similar views  were expressed by the Himachal Pradesh High Court in the case of Satinder Singh  Vs. Sukhdev (AIR 1999 HP 72) and by the Punjab & Haryana High Court in the case  of Om Prakash Vs. Sarupa & Ors. (AIR 1981 P&H 157).

9. In this regard, Mr. Narasimha also referred to another Single Bench decision  of the Rajasthan High Court in Jodhpur Gums & Chemicals Pvt.  Ltd.  Vs.  Punjab  National Bank & Ors. (AIR 1999 Raj. 38), wherein while expressing the same views  as expressed in the above-mentioned matters, it was also observed that by allowing  such an application for  recall  of  a witness,  no prejudice could be caused to the  defendants as, apart from being compensated by costs, they would also have the  opportunity to cross-examine the witness.  

10. On the basis of the above, Mr. Narasimha submitted that the orders of the  learned Single Judge, as also the Division Bench, were passed on an erroneous  understanding of the law and were liable to be set aside.  

11. Strongly opposing the submissions made on behalf of the appellants, Mr.  Shivaji M. Jadhav, learned Advocate, submitted that as has been held by the learned  Single Judge and subsequently confirmed by the Division Bench,  the application  made under Order 18 Rule 17 CPC was nothing but an attempt to fill up the lacunae  in the evidence of Sadanand Shet after his examination had been completed. He  urged that it is settled law that an application under Order 18 Rule 17 CPC could not  be  allowed  when  the  deponent,  while  preparing  his  affidavit  evidence,  had  full  knowledge of all  the facts which were now being proposed to be included in his  evidence, and that the same had been held to be impermissible. Mr. Jadhav also  contended that the power under Order 18 Rule 17 CPC, though giving wide power to  the Court to recall any witness at any stage of a suit in order to examine him/her,  was also meant to be exercised sparingly so that after the examination and cross- examination of a witness, the said witness was not utilized for filling up the gaps in  the evidence of the witness which had been elicited during cross-examination.  

12. Mr. Jadhav submitted that both the learned Single Judge as well  as the  Division Bench of the High Court had rightly dismissed the appellants’ application  under Order 18 Rule 17 CPC and the orders did not merit any interference.  

13.  In  support  of  his  submissions,  Mr.  Jadhav  referred  to  a  Single  Bench  decision of the Allahabad High Court in Sunder Theaters Vs. Allahabad Bank, Jhansi  (AIR 1999 All. 14), where a similar question arose and the Court observed that the  power of  the Court under Order 18 Rule 17 CPC is discretionary and has to be  exercised with the greatest care and only in exceptional circumstances. It was further  observed that under the garb of this rule, the Court ought not to recall a witness at  the instance of a party in order to fill up a lacuna in the evidence already led.  

14. Mr. Jadhav, therefore, submitted that the application filed by the appellants  under Order 18 Rule 17 CPC had been rightly rejected by the Courts below following  the well-established principles as to invocation of power by a Court under Order 18  Rule 17 CPC.

15. Having heard learned counsel for the respective parties, we are unable to  agree with Mr. Narasimha that both the Single Judge and the Division Bench of the  High Court had erred in rejecting the appellants’ application under Order 18 Rule 17  CPC  since,  according  to  Mr.  Narasimha,  no  prejudice  would  be  caused  to  the  respondent  as  he  would  be  given  a  chance  of  cross-examination  after  re- examination-in-chief by the plaintiff.

16. In our view, though the provisions of Order 18 Rule 17 CPC have been  interpreted to include applications to be filed by the parties for recall of witnesses,  the main purpose of the said rule is to enable the Court, while trying a suit, to clarify  any doubts which it may have with regard to the evidence led by the parties. The  said provisions are not intended to be used to fill up omissions in the evidence of a  witness who has already been examined. As indicated by the learned Single Judge,  the evidence now being sought to be introduced by recalling the witness in question,  was available at the time when the affidavit of evidence of the witness was prepared  and affirmed. It is not as if certain new facts have been discovered subsequently  which were not within the knowledge of the applicant when the affidavit evidence  was prepared. In the instant case, Sadanand Shet was shown to have been actively  involved in the acquisition of the flat in question and, therefore, had knowledge of all  the  transactions  involving  such  acquisition.  It  is  obvious  that  only  after  cross- examination of the witness that certain lapses in his evidence came to be noticed  which impelled the appellant to file the application under Order 18 Rule 17 CPC.  Such a course of action which arises out of the fact situation in this case, does not  make out a case for recall of a witness after his examination has been completed.  The  power  under  the  provisions  of  Order  18  Rule  17  CPC  is  to  be  sparingly  exercised and in appropriate cases and not as a general rule merely on the ground  that his recall and re-examination would not cause any prejudice to the parties. That  is not the scheme or intention of Order 18 Rule 17 CPC.

17. It is now well settled that the power to recall any witness under Order 18  Rule 17 CPC can be exercised by the Court  either  on its  own motion or  on an  application filed by any of the parties to the suit, but as indicated hereinabove, such  power is to be invoked not to fill up the lacunae in the evidence of the witness which  has already been recorded but to clear any ambiguity that may have arisen during  the course of his examination. Of course, if  the evidence on re-examination of a  witness has a bearing on the ultimate decision of the suit,  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  the defendants  to  cross-examine  the witness  thereafter.  There is nothing to indicate that such is the situation in the present case. Some of  the  principles  akin  to  Order  47  CPC  may  be  applied  when  a  party  makes  an  application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within  the Court’s discretion,  if  it  deems fit,  to allow such an application. In the present  appeal, no such case has been made out.  

18. We, accordingly, have no hesitation in dismissing the appeal, but  without any order as to costs. The appeal is accordingly dismissed.