BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/08/2010 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN C.R.P.(PD)MD.No.2020 of 2009 & C.R.P.(PD)MD.No.2021 of 2009 and M.P.(MD)No.1 of 2009 S.Kannappan ... Petitioner/Respondent/Defendant
vs.
1.J.Ramanathan
2.J.Muthusubramanian
Respondents 1 and 2 through their
Power agent RM.Jambulingam
s/o.Ramasamy Servai
… Respondents/Petitioners/Plaintiffs
CRP(PD)No.2020 of 2009
This civil revision petition has been filed under
article 227 of the Constitution of India, to call for the records relating to
the order and decreetal order, dated 07.10.2009 passed by the learned
Subordinate Judge, Devakkottai in I.A.No.418 of 2008 in O.S.No.23 of 2005 and
quash the same.
C.R.P.(PD)(MD)No.2021 of 2009
S.Kannappan … Petitioner/Respondent/Defendant
vs
1.J.Ramanathan
2.J.Muthusubramanian
Respondents 1 and 2 through their
Power agent RM.Jambulingam
s/o.Ramasamy Servai
… Respondents/Petitioners/Plaintiffs
CRP(PD)(MD)No.2021 of 2009
This civil revision petition has been filed
under article 227 of the Constitution of India, to call for the records relating
to the order and decreetal order, dated 07.10.2009 passed by the learned
Subordinate Judge, Devakkottai in I.A.No.419 of 2008 in O.S.No.23 of 2005 and
quash the same.
!For Petitioners ... Mr.R.Sundar Srinivasan
^For Respondents ... Mr.AR.L.Sundaresan
Senior Counsel
for B.Muruganandam
:COMMON ORDER
Heard both sides
2.The defendant in O.S.No.23 of 2005, on the file of the Sub Court,
Devakottai, is the revision petitioner.
3.The respondents filed the suit O.S.No.23 of 2005, on the file of the Sub
Court, Devakottai, for declaration that the suit property belongs to them and
for recovery of possession of the same from the defendant and for mesne profit.
4.The revision petitioner contented that the plaintiffs are not entitled
to the relief as prayed for and they are not the owners of the property. During
the trial, the respondents/plaintiffs examined four witnesses and their evidence
was closed and the case was posted for the examination of the defendants side.
At that time, the plaintiffs filed application I.A.No.418 of 2008 for reopening
the plaintiffs’ side evidence for recalling P.W.4 for marking certain documents
and also filed I.A.No.419 of 2005 to recall PW4. In the affidavit, it was stated
that certain documents were made available only after the examination of the
witnesses were over and those documents are necessary to prove the case of the
plaintiffs and those documents are required to be marked through P.W.4 and for
that purpose, P.W.4 has to be recalled and examined.
5.The revision petitioner/defendant filed a counter stating that the
application was filed to drag on the proceedings and no valid reason has been
stated in the application and also no details were mentioned and therefore,
these applications are not maintainable and are liable to be dismissed. The
learned Sub Judge after appreciating of the facts law on that aspect, allowed
the applications and against the same, these civil revision petitions are filed.
6.It is contended by Mr.R.Sundar Srinivasan, the learned counsel appearing
for the revision petitioner that after the examination of the plaintiffs’ side
witnesses were over, the case was posted for the examination of the defendants
side witnesses and with a view to drag on the proceedings, these applications
were filed and hence, the Court should not have allowed the applications and the
applications are filed only to drag on the proceedings.
7.The learned Senior counsel appearing for the respondent submitted that
under Order 18 Order 17 C.P.C, the Court has got power to recall a witness at
any point time and the lower Court has correctly exercised its discretion and
therefore, the orders of the lower Court cannot be interfered with.
8.The learned Senior counsel further submitted that there was no delay on
the part of the respondents and immediately after the evidence was closed, these
applications were filed and sufficient reasons were stated for filing the
applications and the lower Court properly appreciated these facts and allowed
the applications.
9.I have given my anxious consideration to the submission made by both
counsels.
10.In my opinion, there is no need to interfere with the orders of the
Court below. In the application to recall P.W.4, it has been stated that certain
documents came into possession of the plaintiffs/respondents after the
examination of the witnesses were over and the for the purpose of marking those
documents, P.W.4 has to be recalled and for that purpose, the case has to be
reopened. Further, it is not disputed that immediately after the evidence on
the plaintiff’s side was over, the applications were filed to reopen and recall
P.W.4. In the counter filed by the revision petitioner, it has not been stated
how the petitioner would be prejudiced by recalling P.W.4 and the only reason
that was urged before the lower Court and this Court was that the plaintiffs
with an intention of dragging on the proceedings, these applications are filed.
11.Considering the facts of the case, I am not in agreement with the
contention of the learned counsel appearing for the revision petitioner. As per
Order 18 Rule 17 C.P.C., the Court has got power to recall witness at any time
and in this case, no prejudice will be caused to the revision petitioner, by
allowing PW4 to be examined and the revision petitioner will have the right of
cross examination the witness and also adduce evidence on their side to refute
the evidence given by P.W.4.
12.Further, the Honourable Supreme Court held in the judgment reported in
2009-5-L.W.52, in the case of Vadiraj Naggappa Vernekar(d)Through Lrs. vs.
Sharad Chand Prabhakar Gogate, that “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 herein above, 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.”
13.Further, in the judgment reported in 1998(1) LW 778 = AIR 1998 Mas.323
[S.S.S.Durai Pandian vs. Samuthira Pandian], this Court has 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 parties. Therefore, considering the scope of
Order 18 Rule 17 CPC, witness can be recalled for the purpose of settling the
controversy between the parties and no prejudice will be cased to the defendant
by allowing the application.
12.Hence, the lower court has correctly exercised the discretion and
therefore, I do not find any infirmity to interfere with the order of the lower
court. Accordingly both the civil revision petitions are dismissed.
Consequently, connected Miscellaneous Petition is closed. No costs.
er
To,
The Sub Court,
Devakottai.