IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.10.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.2678 of 2008 and M.P.No.1 of 2008 K.M.Ramanna ... Petitioner Vs. 1.Thimmakka 2.Ramakrishnappa 3.T.Rajappa 4.T.Krishnappa 5.Minor Mani 6.Minor Siva 7.Minor Thirumarayappa 8.Narasamma 9.Gopalappa ... Respondents (Respondents 3 to 9 not necessary parties in the CRP given up) Prayer: Petition filed under Article 227 of the Constitution of India against the Fair and decretal order of the learned District Munsif, Hosur, dated 18.06.2008 made in I.A.No.275 of 2008 in O.S.No.78 of 2008. For Petitioner : Mr.R.Subramanian For RR 1 and 2 : Mr.V.Lakshminarayanan For Mr.V.Raghavachari ORDER
The civil revision petitioner/8th defendant/petitioner has filed this revision as against the order passed in I.A.No.275 of 2008 in O.S.No.78 of 2003 dated 18.06.2008 by the District Munsif, Hosur in allowing the application filed by the respondents 1 and 2/plaintiffs under Section 151 of Civil Procedure Code praying the trial Court to reopen the case so as to enable the respondents/plaintiffs to produce further three witnesses on their side.
2.The trial Court while passing orders in I.A.No.275 of 2008 has inter alia observed that based on the nature of the case, an opportunity can be given to the respondents/ petitioners to examine other witnesses and there is nothing wrong in providing such opportunity and since the matter has been posted for arguments and at that stage, the present IA has been filed. Hence, a cost of Rs.250/- has been awarded to be paid by the respondents/plaintiffs to the defendants on or before 23.6.2003 and resultantly, allowed the application.
3.The learned counsel for the revision petitioner urges before this Court that the conditional order passed by the trial Court in allowing I.A.No.275 of 2008 is contrary to law and probabilities of the case and that the trial Court has allowed the application mainly on the reason that witnesses to be examined can be cross examined by the other side without adverting to the fact that the object behind the application is to fill up the lacuna in the case of the respondents/plaintiffs and hence, prays for allowing the revision.
4.The learned counsel for the revision petitioner submits that the power of the Court to recall and examine a witness at any stage of a suit is to be exercised under exceptional circumstances and in support of the said contention, he places reliance on the decision of this Court in V.Shanmugam V. Umamaheswaran (2008) 2 MLJ 382 at page 384 whereby and whereunder it is observed that ‘… Moreover, the power of the Court under Order 18 Rule 17 CPC to recall and examine a witness at any stage of the suit is to be exercised in exceptional circumstances. Where no exceptional circumstances have been made out and unless the reason given by the Trial Judge could be described as moon shine, flimsy or irrational stemmed from any oblique motive or purpose, the rejection of the application cannot be called as non-judicial approach and the High Court cannot interfere.’
5.Per contra, the learned counsel appearing for the respondents 1 and 2/plaintiffs/petitioners submits that I.A.No.275 of 2008 praying for permission of the trial Court to reopen the case has been filed under Section 151 of Civil procedure Code and that the said power is an inherent power of the Court and therefore, the I.A.No.275 of 2008 filed under Section 151 of Civil Procedure Code is perfectly maintainable in law. The learned counsel for the respondents 1 and 2/plaintiffs cites before this Court the decision in Smt.Meenakshamma V. Sri Munivenkatappa AIR 2003 Karnataka 450 wherein it is observed that ‘Order allowing plaintiff to adduce additional evidence after stage of evidence-Is one passed under Section 151 of Civil Procedure Code in exercise of inherent powers and therefore, the revision against such order is not maintainable.’ Moreover, the learned counsel for the respondents/plaintiffs also cites the decision of this Court in S.Rathinaswamy and Others V. Smt.S.Bhanumathi and others AIR 2006 Madras 221 wherein it is held that ‘permission to recall witness and mark documents should be granted’.
6.It is true that the suit has been posted for hearing arguments of respective parties. Admittedly, on the side of plaintiffs, three witnesses have been examined and on the side of defendants, six witnesses have been examined including the 8th defendant.
7.On going through the order passed by the trial Court, this Court is of the considered view that the trial Court has exercised its judicial discretion in allowing the I.A.No.275 of 2008 for reopening the case for the purpose of examining further witnesses and while allowing the said application, the trial Court has also imposed a cost of Rs.250/- to be paid by the respondents/ plaintiffs to the defendants in the suit on or before 23.6.2003, and such an exercise of discretion by the trial Court does not suffer from any patent irregularity or material illegality in the eye of law. No doubt, the trial Court has got powers to recall the witness under Order 18 Rule 17 of Civil Procedure Code. However, the power is purely discretionary, within the ambit of the Court. It is to be noted that the said power is to be exercised with greatest care and circumspection based on the particular facts and circumstances of each case. A right of the Court to act under Section 151 of Civil Procedure Code or under Order 18 Rule 17 of Civil Procedure Code is not a fettered one, in the considered opinion of this Court. Suffice it to point out that looking at from any angle, this Court is of the considered view that the power exercised by the trial Court in allowing the application is perfectly sustainable in the eye of law and in that view of the matter, the civil revision petition fails and the same is hereby dismissed.
8.In fine, the Civil Revision Petition is dismissed. The order passed by the trial Court in I.A.No.275 of 2008 in O.S.No.78 of 2003 dated 18.06.2008 is confirmed by this Court for the reasons assigned in this revision. But since the suit is of the year 2003 and bearing in mind of an important fact that already three witnesses have been examined on the side of plaintiffs and six witnesses have been examined on the side of defendants (including the 8th defendant), this Court directs the trial Court to dispose of the main suit within a period of three months from the date of receipt of copy of this order and the parties are directed to co-operate with the trial Court in completing the proceedings of the suit in the interest of justice. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
sgl
To
The District Munsif,
Hosur
[ PRV / 16101 ]