‘If the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs,’ said an apex court bench of Justice R.V. Raveendran and Justice A.K. Patnaik.
Emphasizing on role of courts in discouraging such applications, the judges said: ‘If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case and recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence.’
The judgment said that trial courts should exercise caution in exercising their discretion in entertaining applications for the recall of witnesses.
Courts should also guard that the object of the application should not be ‘merely to protract the proceedings’, said the judges in an order made available Thursday.
‘If so used, it will defeat the very purpose of various amendments to the Code of Civil Procedure to expedite trials,’ the court said.
The court said this while upholding an appeal by K.K. Velusamy challenging a high court order turning down his plea for the reopening of the evidence in a case involving an agreement for sale of a property which was decided by the trial court in 2006.
The apex court said that an application for recall of witnesses should be rejected if court comes to conclusion that the applicant had the opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous.
‘But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence,’ the apex court said.
If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application, the judgment said.
‘Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. Courts should constantly endeavour to follow such a time schedule’.