Chattisgarh High Court
Ajay Singh Gupta vs Dr. Smt. Pratima Raman on 22 September, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP(227) No. 462 of 2023
Order reserved on 17.08.2023
Order delivered on 22.09.2023
Ajay Singh Gupta S/o Late Bahadur Singh Gupta Aged About 75 Years A/a
75 Years (Presently 81 Years), R/o 179, Utai Road, Beside Labor Court,
Irani Dera, Durg Tahsil And District Durg Chhattisgarh
----Petitioner
Versus
1. Dr. Smt. Pratima Raman W/o Late N.V. Raman Aged About 82 Years A/a 82
Years, R/o Near Khirhani Fatak, Katani, Tahsil And District Katani Madhya
Pradesh
2. Ajeet Singh Gupta S/o Late Bahadur Singh Gupta R/o Aapapura, Katchahari
Road Durg, Tahsil And District Durg Chhattisgarh (Dead Represented
Through Legal Representatives)
2 A. Neelima Gupta, W/o. Late Shri Ajeet Singh Gupta aged about 71 years.
2 B. Prashant Singh Gupta S/o Late Shri Ajeet Singh Gupta Aged About 41
Years
Both R/o. Aapapura, Katchahari Road, Durg, Tahsil & District Durg,
Chhattisgarh.
2C. Smt. Sonali Tavar W/o Shri Dr. Mohit Tavar Aged About 48 Years R/o.
Smriti Nagar Junwani Tahsil & District Durg, Chhattisgarh.
3. Dr. Vijay Singh Gupta S/o Late Bahadur Singh Gupta A/ A 77 Years, R/o
Aapapura, Katchahari Road Durg, Tahsil And District Durg Chhattisgarh
(Dead Representative Through Legal Representative)
3A. Smt. Bharti Gupta W/o Shri Vijay Singh Gupta Aged About 70 Years R/o
Aapapura, Katchahari Road Durg, Tahsil And District Durg Chhattisgarh.
4. Dr. Smt. Madhu Mahajan W/o Yateendra Kumar Mahajan, A/ A 70 Years, C/o
Ajay Singh Gupta 179, Utai Road, Beside Labour Court, Irani Dera, Durg,
Tahsil And District Durg Chhattisgarh
5. Dr. Smt. Indur Veshvanar W/o Late Prem Singh Aged about 92 Years R/o
13, Juhu Gold Mist, Gulmohar Road, Juhu Mumbai (M.H.)
(Dead Represented Through Legal Representative)
5A. Pradeep Kumar Veshvanar S/o Late Shri Prem Singh Veshvanar Aged
About 64 Years
5B. Dr. Smt. Vandana Sudhir Dubey W/o Shri Sudhir Dubey Aged About 61
Years
Both R/o. 13, Juhu Gold Mist, Gulmohar Road, Juhu, Mumbai, M.H.
6. Dr. Smt. Leena Jaiswal W/o Dr. Pramod Jaiswal Aged About 58 Years R/o F
01/j 1574, Haradika Apartment, 13 Main Road, Anna Nagar (West) Chennai,
(Tamil Nadu) 600040
7. Smt. Pranati Gupta W/o Navneet Gupta Aged About 47 Years R/o B-40
Paten Nagar Second, Gariyaband Uttar Pradesh
2
8. Milind Gupta S/o Dr. Vijay Singh Gupta, A/a 42 Years, R/o Aapapura,
Katchahari Road, Durg Tahsil And District Durg Chhattisgarh (Dead
Represented Through Legal Heirs)
8A. Smt. Garima Gupta W/o Late Shri Milind Gupta Aged About 38 Years
8B. Ku. Deepika Gupta D/o Late Shri Milind Gupta Aged About 8 Years
8C. Ku Lavya Gupta D/o Late Shri Milind Gupta Aged About 3 Years
(minors represented through their legal guardian/ mother Smt. Garima
Gupta W/o late Shri Milind Gupta aged about 38 years)
All R/o. Aapapura, Katchahari Road, Durg, Tahsil and District Durg,
Chhattisgarh.
9. Skandh Gupta S/o Dr. Vijay Singh Gupta Aged About 40 Years R/o
Aapapura, Katchahari Road, Durg, Tahsil And District Durg Chhattisgarh
10. State Of Chhattisgarh Through Collector, Durg District Durg Chhattisgarh
Note: Respondents No. 2,3,5 and 8 are dead, Represented Through Their
Legal Representatives.
---- Respondents
For Petitioner : Shri Arvind Shrivastava,
Advocate.
For Respondent No.1 : Shri Manoj Paranjpe, Advocate
alongwith Shri Anurag Singh,
Advocate.
For Respondents No.2A to 2C : Shri Ashish Surana, Advocate.
For Respondent No.10/ State : Shri Vimlesh Bajpai, G.A.
Hon'ble Shri Justice Rakesh Mohan Pandey
CAV ORDER
Heard.
1. The petitioner/defendant No.2 has preferred this petition against the
order dated 10.05.2023 passed by the learned First Additional District Judge,
Durg in Civil Suit No. 25A of 2018 parties being “Dr. Smt. Pratima Raman vs.
Ajeet Singh and Others” whereby an application preferred by the petitioner
under Order 18 Rule 17 read with Section 151 of Code of Civil Procedure for
an opportunity to further cross-examine the plaintiff/respondent No.1 on the
newly exhibited documents, which were brought on record after completion
of plaintiff’s evidence, has been rejected.
3
2. The facts of the present case are that respondent No.1 is the plaintiff
whereas respondents No. 2A to 2C are the legal heirs of defendant
No.1/Ajeet Singh Gupta and the petitioner is the defendant No.2. The
plaintiff/respondent No.1 filed a civil suit on 15.05.2018 seeking therein
reliefs of declaration of title, partition and possession. The petitioner and the
defendants filed their written statement. After completion of the plaintiff’s
evidence on 21.04.2023, when the suit was set for evidence of defendants,
an application under Order 7 Rule 14(3) of CPC along with the documents
was filed by the plaintiff on 01.05.2023. The defendants opposed the
application. Eventually, the application was allowed by the learned trial Court
vide order dated 03.05.2023. On 03.05.2023, the petitioner/defendant No.2
moved an application under Order 18 Rule 17 of CPC for the re-cross-
examination of the plaintiff’s witnesses. On 06.05.2023, during the cross-
examination of the witness of defendant No.1, namely, Prashant Singh
Gupta, the plaintiff exhibited two documents vide Ex.P/23 and P/24. The
documents were filed by the plaintiff along with an application under Order 7
Rule 14(3) of CPC. Thereafter, an application under Order 18 Rule 17 of
CPC read with Section 151 of CPC was moved by the petitioner for re-cross-
examination of the plaintiff concerning documents exhibited by the plaintiff
during the cross-examination of the witness of defendant No.1, namely,
Prashant Singh Gupta. Learned trial Court vide order dated 10.05.2023
rejected the application against which the present petition has been
preferred.
3. From a perusal of the documents annexed along with the writ petition,
it appears that along with the application filed under Order 7 Rule 14(3) of
CPC, the plaintiff had filed documents which were filed in Civil Appeal No.
4
47A of 2017 “Milind Gupta and Another vs. Ajeet Singh Gupta and Another”.
The documents so filed include the application under Order 41 Rule 27 of
CPC filed by Ajeet Singh Gupta, an affidavit, a list of documents, the
marriage certificate, the death certificate and the written statement of Ajay
Singh Gupta filed in Civil Suit No. 4A of 2006. Ajeet Singh Gupta/defendant
No.1 and Ajay Singh Gupta/defendant No.2 were respondents in Civil Appeal
No. 47A of 2017 and an application moved under Order 41 Rule 27 of CPC
in Civil Appeal No.47A of 2017 was pending before the said Court and the
same was not disposed of. It was observed vide order dated 17.09.2018 that
the application would be considered at the time of final hearing and later on,
Civil Appeal No. 47A of 2017 was withdrawn on 14.05.2019.
4. Learned counsel for the petitioner would submit that though there was
no action for re-cross-examination of the plaintiff, however an application
moved by the plaintiff under Order 7 Rule 14(3) of CPC was allowed by the
learned trial Court on 03.05.2023 and some documents were exhibited by
the plaintiff during the cross-examination of the witness of defendant No.1,
namely, Prashant Singh Gupta, therefore, to rebut the same the cross-
examination of the plaintiff is required. It is also argued that respondents No.
2A to 2C are neither the executants nor witnesses to the documents which
have been exhibited as P/23 and P/24. He would further submit that in the
absence of cross-examination of the plaintiff, the evidence of the said
witness would remain unchallenged and may be treated as admitted. It is
also stated that the plaintiff exhibited his documents while cross-examining
the witness of defendant No.1, therefore, it became necessary to call the
plaintiff in the witness box for re-cross-examination.
Learned counsel for the petitioner has placed reliance on the judgments
5
passed by the Hon’ble Supreme Court in the matter of K.K. Velusamy vs.
N. Palanisamy, reported in (2011) 11 SCC 275, Ram Rati vs. Mange Ram
(dead) through Legal Representatives and Others, reported in (2016) 11
SCC 296 and the matter of Vathsala Manickavasagam and Others vs. N.
Ganesan and Another, reported in 2013 SAR (Civil) 851.
5. On the other hand, learned counsel for the plaintiff/respondent No.1
would oppose the submissions made by learned counsel for the petitioner.
Learned counsel for respondent No.1 would submit that the petitioner had
moved an application under Order 18 Rule 17 of CPC for
re-examination/further cross-examination of the plaintiff, who is 86 years old
lady. He would further submit that the learned trial Court has passed a well-
reasoned order and no error has been committed by the learned trial Court
while passing the impugned order and thus, the order does not call for any
interference. He would further argue that a civil suit was filed for partition
inter alia on the ground that the plaintiff/respondent No.1 is entitled to 1/7th
share in the property left behind by the deceased, namely, Randhir Singh
Gupta. The plaintiff submitted her examination-in-chief in the form of an
affidavit under Order 18 Rule 4 of CPC on 16.03.2023 and thereafter, she
was cross-examined on 11.04.2023, 12.04.2023, 13.04.2023, 17.04.2023,
18.04.2023 and 19.04.2023. One more plaintiff, namely, Manoj Agrawal was
also examined. He would next submit that thereafter, an application was
moved by the plaintiff under Order 7 Rule 14(3) of CPC on 01.05.2023 for
taking additional documents on record and the same was allowed by the
learned trial Court. He would next contend that defendant No.1 and
defendant No.2 were brothers. On 01.05.2023, the plaintiff cross-examined
the son of defendant No.1 and the documents filed by her on 01.05.2023
were confronted to the said witness who admitted the said documents which
6
were exhibited vide Ex.P/23 & P/24. He would also submit that those
documents were filed in Civil Appeal No. 47A of 2017 in which the present
petitioner/defendant No.2 was also a party. His next contention is that the
first application under Order 18 Rule 17 of CPC was filed by the petitioner on
03.05.2023 and the same was rejected by the learned trial Court on
04.05.2023 and after four days again the petitioner moved an application
under Order 18 Rule 17 of CPC read with Section 151 of CPC on
08.05.2023 seeking similar relief and thus, the second application was not
maintainable, therefore, the learned trial Court has rightly rejected the
application. He would also argue that the prayer of petitioner/defendant No.2
for re-examination/cross-examination of the plaintiff cannot be entertained
because the plaintiff is not the author of the documents and the documents
were not executed by her. It is further contended that the principle of res-
judicata would apply in the facts and circumstances of the case as an earlier
application moved under Order 18 Rule 17 of CPC was rejected and
thereafter another application was moved under the same provision at the
successive stage. It is next contended that the documents were filed on
30.06.2018 by the original defendant No.1 Ajeet Singh Gupta in Civil Appeal
No. 47A of 2017 along with an application under Order 41 Rule 27 of CPC.
Reliance has been placed on the judgment passed by the Hon’ble
Supreme Court in the matter of Surjeet Singh and Others vs. Gurwant
Kaur and Others, reported in (2015) 1 SCC 665, and the matter of
Mohanlal Gangaram Gehani vs. State of Maharashtra, reported in 1982
(1) SCC 700 wherein in paragraph 13, the Hon’ble Supreme Court has dealt
with the scope of Section 145 of Evidence Act, which reads as under:
“13. It is obvious from a perusal of Section 145 that it applies only to
cases where the same person makes two contradictory statements either
in different proceedings or in two different stages of a proceeding. If the
maker of a statement is sought to be contradicted, his attention should be
7drawn to his previous statement under Section 145. In other words, where
the statement made by a person or witness is contradicted not by his own
statement but by the statement of another prosecution witness, the
question of the application of s. 145 does not arise. To illustrate, we might
give an instance-suppose A, a prosecution witness, makes a particular
statement regarding the part played by an accused but another witness B
makes a statement which is inconsistent with the statement made by A, in
such a case Section 145 of the Evidence Act is not at all attracted. Indeed,
if the interpretation placed by the High Court is accepted, then it will be
extremely difficult for an accused or a party to rely on the inter-se
contradiction of various witnesses and every time when the contradiction is
made, the previous witness would have to be recalled for the purpose of
contradiction. This was neither the purport nor the object of Section 145 of
the Evidence Act.”
In the matter of Hemant Kumar @ Hothchandra vs. Mehand Jai
Narayan Das passed by the Gwalior Bench of the Madhya Pradesh High
Court reported in 2014 LawSuit (MP) 389, in paragraph 6, the Court
discussed the scope of Order 18 Rule 17 of CPC as considered by the
Hon’ble Supreme Court in the matter of K.K. Velusamy (supra):
“(6). The Apex Court considered the scope of order 18 Rule 17 CPC in K.K.
Velusamy and in para 9 & 10 opined as under:-
“9. Order 18 Rule 17 of the Code enables the court, at any stage of a
suit, to recall any witness who has been examined (subject to the law
of evidence for the time being in force) and put such questions to him
as it thinks fit. The power to recall any witness under Order 18 Rule
17 can be exercised by the court either on its own motion or on an
application filed by any of the parties to the suit requesting the court
to exercise the said power. The power is discretionary and should be
used sparingly in appropriate cases to enable the court to clarify and
doubts it may have in regard to the evidence led by the parties. The
said power is not intended to be used to fill up omissions in the
evidence of a witness who has already been examined (Vide Vadiraj
Naggappa Vernekar Vs. Sharadchandra Prabhakar Gogate, 2009 4
SCC 410.
10. Order 18 Rule 17 of the Code is not a provision intended to
enable the parties to recall any witnesses for their further
examination-in-chief or cross-examination or to place additional
material or evidence which could not be produced when the evidence
was being recorded. Order 18 Rule 17 is primarily a provision
enabling the court to clarify any issue or doubt, by recalling any
witness either suo moto, or at the request of any party, so that the
court itself can put questions and elicit answers. Once a witness is
recalled for purposes of such clarification, it may, of course, permit
the parties to assist it by putting some questions.
8
8. It is relevant to mention that in Ram Vishal this Court in clear terms made it
clear that in every case it needs to be seen whether such an opportunity is
necessary. If yes, to what extent. There is no thumb rule that in every case
where amendment is allowed plarty must be permitted to recall the witness for
the purpose of cross-examination. It depends on the factual backdrop of each
matter. The Apex Court in Velusamy made it clear that purpose of recalling
witness is limited. Witnesses cannot be recalled on mere asking.”
In the matter of Narmade Prasad vs. Manohar Das Sadhu passed
by the High Court of Madhya Pradesh reported in 1998 LawSuit (MP) 573,
in paragraph 1 it was opined that:-
“(1) This revision is directed against the order dated 24.8.1998, whereby
the trial Court has refused to allow the application under Order 18 Rule 17
of the Code of Civil Procedure for further cross-examination of a witness
Manohar Das. The trial Court has refused to grant the prayer of the
applicant on the ground that it was male flde and was made with a view to
prolongue the trial. Be as it may, the provision of Order 18 Rule 17 of the
Code of Civil procedure, on which the learned counsel for the applicant
placed reliance, is not made for the purpose of re-examination of the
witness. It is the power of the Court to recall a witness for putting such
question to him as the Court thinks fit. This is discretion of the Court and
not the right of a party to get a witness recalled. This Court is not
impressed by the argument that the Court has taken on record certain
documents after the applicant closed his evidence. Since the non-
applicant No.1 has not proved these documents in his evidence as these
documents have been filed after the non-applicant No.1 – Manohar Das
Sadhu was already examined and his evidence is closed. This Court is of
the view that no purpose would be served by permitting the applicant to
cross-examine the witness with a reference to document which has not
been proved by him in this evidence and marked as exhibit in thecase.
The revision has no force. It is accordingly dismissed.”
6. On the other hand, the legal heirs of respondent No.2 would support
the contention made by the petitioner/defendant No.1.
7. Learned counsel for the State/respondent No.10 would also support
the order passed by the learned trial Court.
8. I have heard learned counsel for the parties at length and perused the
documents placed on record.
9. From the perusal of the documents, it appears that a civil suit was filed
by the plaintiff/respondent No.1 for partition claiming therein 1/7th share in
the property left by her deceased brother, namely, Randhir Singh Gupta. On
9
01.05.2023, the plaintiff moved an application under Order 7 Rule 14(3) of
the CPC and the same was allowed. Thereafter, an application was moved
by defendant No.1 under Order 18 Rule 17 of CPC for re-examination/cross-
examination of the plaintiff and the same was rejected by the learned trial
Court on the ground that though the documents have been filed by the
plaintiff under Order 7 Rule 14(3) of CPC but those documents have not
been admitted. The son of defendant No.1 was cross-examined by the
plaintiff on 01.05.2023 and he was confronted with the documents filed on
01.05.2023 by the plaintiff and two of the documents were exhibited as Ex.P/
23 & P/24. Thereafter, the petitioner again moved an application under Order
18 Rule 17 read with Section 151 of CPC. The documents filed by the
plaintiff along with an application filed under Order 7 Rule 14(3) of CPC were
earlier filed in civil appeal preferred by Randhir Singh but that application
was not considered as the Civil Appeal No. 47A of 2017 was withdrawn.
10. With regard to the submission made by learned counsel for
respondent No.1 that the second application moved by the
petitioner/defendant No.1 under Order 18 Rule 17 read with Section 151 of
CPC was not maintainable as the first application for re-examination/cross-
examination of the petitioner was rejected by the learned trial Court on
04.05.2023. The first application was moved by the petitioner on 01.05.2023
under Order 18 Rule 17 of CPC and the same was rejected on the ground
that the documents filed by the plaintiff have been taken on record but the
same have not been exhibited. The second application was moved when
those documents were exhibited in the cross-examination of the son of
defendant No.1 as Ex.P/23 & P/24, therefore, a repeat application was
moved under Order 18 Rule 17 read with Section 151 of CPC. Order 18 Rule
17 of CPC gives the Court power to call and re-examine the witness at any
10
stage of a suit, who has already been examined. As the documents
produced by the plaintiff were taken on record and those documents were
exhibited, therefore, exigency arose for defendant No.2 to move such an
application. The Hon’ble Supreme Court in the matter of K.K. Velusamy
(supra) in para 12, 13 and 19 held as under:
“12. The respondent contended that section 151 cannot be used for re-
opening evidence or for recalling witnesses. We are not able to accept the
said submission as an absolute proposition. We however agree that section
151 of the Code cannot be routinely invoked for reopening evidence or
recalling witnesses. The scope of section 151 has been explained by this
Court in several decisions (See : Padam Sen vs. State of UP-AIR 1961 SC
218; Manoharlal Chopra vs. Seth Hiralal – AIR 1962 SC 527; Arjun Singh vs.
Mohindra Kumar – AIR 1964 SC 993; Ram Chand and Sons Sugar Mills
(P) Ltd. vs. Kanhay Lal – AIR 1966 SC 1899; Nain Singh vs. Koonwarjee –
1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India –
AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs.
Commissioner of Income Tax, New Delhi – AIR 1977 SC 1348; National
Institute of Mental Health & Neuro Sciences vs. C Parameshwara –
2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj – 2010 (8) SCC 1).
We may summarize them as follows:
(a) Section 151 is not a substantive provision which creates or
confers any power or jurisdiction on courts. It merely recognizes the
discretionary power inherent in every court as a necessary corollary
for rendering justice in accordance with law, to do what is `right’ and
undo what is `wrong’, that is, to do all things necessary to secure the
ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, section 151
recognizes and confirms that if the Code does not expressly or
impliedly cover any particular procedural aspect, the inherent power
can be used to deal with such situation or aspect, if the ends of
justice warrant it. The breadth of such power is co-extensive with the
need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the
Code, by purported exercise of its inherent powers. If the Code
contains provisions dealing with a particular topic or aspect, and
such provisions either expressly or necessary implication exhaust
the scope of the power of the court or the jurisdiction that may
exercised in relation to that matter, the inherent power cannot be
invoked in order to cut across the powers conferred by the Code or a
manner inconsistent with such provisions. In other words the court
cannot make use of the special provisions of Section 151 of the
Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the
powers specifically conferred, a court is free to exercise them for the
purposes mentioned in Section 151 of the Code when the matter is
not covered by any specific provision in the Code and the exercise of
those powers would not in any way be in conflict with what has been
expressly provided in the Code or be against the intention of the
11Legislature.
(e) While exercising the inherent power, the court will be doubly
cautious, as there is no legislative guidance to deal with the
procedural situation and the exercise of power depends upon the
discretion and wisdom of the court, and the facts and circumstances
of the case. The absence of an express provision in the code and
the recognition and saving of the inherent power of a court, should
not however be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with
circumspection and care, only where it is absolutely necessary, when
there is no provision in the Code governing the matter, when the
bona fides of the applicant cannot be doubted, when such exercise
is to meet the ends of justice and to prevent abuse of process of
court.
13. The Code earlier had a specific provision in Order 18 Rule 17A for
production of evidence not previously known or the evidence which could not
be produced despite due diligence. It enabled the court to permit a party to
produce any evidence even at a late stage, after the conclusion of his
evidence if he satisfied the court that even after the exercise of due diligence,
the evidence was not within his knowledge and could not be produced by him
when he was leading the evidence. That provision was deleted with effect
from 1.7.2002. The deletion of the said provision does not mean that no
evidence can be received at all, after a party closes his evidence. It only
means that the amended structure of the Code found no need for such a
provision, as the amended Code contemplated little or no time gap between
completion of evidence and commencement and conclusion of arguments.
Another reason for its deletion was the misuse thereof by the parties to
prolong the proceedings under the pretext of discovery of new evidence.
19. We may add a word of caution. The power under section 151 or Order 18
Rule 17 of the Code is not intended to be used routinely, merely for the
asking. If so used, it will defeat the very purpose of various amendments to
the Code to expedite trials. 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. But if it does so, it should ensure that the process does
not become a protracting tactic. The court should firstly award appropriate
costs to the other party to compensate for the delay. Secondly the court
should take up and complete the case within a fixed time schedule so that the
delay is avoided. Thirdly if the application is found to be mischievous, or
frivolous, or to cover up negligence or lacunae, it should be rejected with
heavy costs. 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 recalling the witnesses, it can be made
a ground for awarding exemplary costs apart from ordering prosecution if it
involves fabrication of evidence. If the party had an opportunity to produce
such evidence earlier but did not do so or if the evidence already led is clear
and unambiguous, or if it comes to the conclusion that the object of the
application is merely to protract the proceedings, the court should reject the
application. 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.
12
11. As far as the submission of learned counsel for respondent No.1 that
the repeat application under Order 18 Rule 17 of CPC would be barred in
view of the principle of res-judicata is concerned, the first application moved
by the petitioner under Order 18 Rule 17 of CPC was rejected on 04.05.2023
on the ground that the concerned documents have not been exhibited in
evidence whereas, the second application was moved under Order 18 Rule
17 read with Section 151 of CPC on the ground that those documents filed
by the plaintiff on 01.05.2023 have already been admitted and exhibited vide
Ex. P/23 and P/24 and if the evidence of witness remains unrebutted, it
would adversely affect the right of the party who fails in rebutting the same.
However, as per the law laid down by the Hon’ble Supreme Court in the
matter of K.K. Velusamy (supra) the inherent discretionary power of the
Court can be exercised provided under Section 151 of CPC, therefore, the
second application moved by the petitioner was maintainable.
12. Concerning the next submission of learned counsel for respondent
No.1 that the defendants in their pleading have admitted the fact that
Randhir Singh was unmarried and issueless and therefore, the documents
exhibited (Ex.P/23 and P/24) do not affect the rights of defendant No.1. The
right of cross-examination is a perpetual right given by statute to a party
which is provided under Sections 137 and 138 of the Evidence Act. If any
piece of evidence remains unrebutted, it may reflect an adverse effect on the
rights and interests of a party. Further, there was no need for the plaintiff to
exhibit the documents during the course of cross-examination of the
defendant witness and this very action of the plaintiff has given the right to
the petitioner/defendant No.1 to re-cross-examine the plaintiff and her
witnesses. Though there was no need to re-cross-examine the plaintiff as the
plaintiff was sufficiently cross-examined by defendant No.1 but when
13
documents were produced by the plaintiff and two documents were
exhibited, the petitioner filed the second application to secure his right and
not to fill up any lacuna. The filling up lacuna will not be possible because
the Court will definitely be regulating the evidence going to be recorded and
will be disallowing any questions if asked apart from and irrelevant to the
said two documents. The plaintiff is not an executor or attestator of the
documents exhibited as Annexure P/23 & P/24 but those documents may
affect the rights of the petitioner or other party, therefore, the application
moved by the petitioner ought to have been allowed by the learned trial
Court. The opportunity to re-cross-examine the plaintiff would not cause
prejudice to the plaintiff but denial may adversely affect his valuable rights.
13. The Hon’ble Supreme Court in the matter of Vathsala
Manickavasagam and Others vs. N. Ganesan and Another, reported in
2013 SAR (Civil) 851 has held that the admission made by a party in a
document filed on record, if not participated, would be binding on such party.
Para 23 and 24 which are relevant, are reproduced herein below:
“23. Having heard the learned counsel for the respective parties, we are of the
considered opinion that at the forefront, it will be necessary to consider the
effect of Ex.A-17, in as much as, the said document is fully controlled by
Section 17 of the Evidence Act. Section 17 of the Evidence Act reads as
under:
“S.17. Admission defined:- An admission is a statement, oral or
documentary or contained in electronic form, which suggests any
inference as to any fact in issue or relevant fact, and which is made
by any of the persons, and under the circumstances, hereinafter
mentioned.”
24. As far as the principle to be applied in Section 17 is concerned, the
Section as it reads is an admission, which constitutes a substantial piece of
evidence, which can be relied upon for proving the veracity of the facts,
incorporated therein. When once, the admission as noted in a statement
either oral or documentary is found, then the whole onus would shift to the
party who made such an admission and it will become an imperative duty on
such party to explain it. In the absence of any satisfactory explanation, it will
have to be presumed to be true. It is needless to state that an admission in
order to be complete and to have the value and effect referred to therein,
should be clear, certain and definite, without any ambiguity, vagueness or
confusion. In this context, it will be worthwhile to refer to a decision of this
14
Court in Union of India Vs. Moksh Builders and Financiers Ltd. and others –
AIR 1977 SC 409 wherein it is held as under:
“…It has been held by this Court in Bharat Singh v. Bhagirath [1966] 1
SCR 606 = AIR 1966 SC 405 that an admission is substantive evidence
of the fact admitted, and that admissions duly proved are “admissible
evidence irrespective of whether the party making them appeared in the
witness box or not and whether that party when appearing as witness
was confronted with those statements in case it made a statement
contrary to those admissions.” In taking this view this Court has noticed
the decision in Ajodhya Prasad Bhargava v. Bhawani Shanker – AIR
1957 All 1 (FB) also.”
In the matter of Hemant Kumar (supra), the High Court of Madhya
Pradesh relying on the judgment passed by the Hon’ble Supreme Court in
the matter of K.K. Velusamy (supra) held that there is no thumb rule that in
every case where amendment is allowed partly, party must be permitted to
recall the witness for the purpose of cross-examination. It depends on the
factual backdrop of each matter.
In the matter of Narmade Prasad (supra) the High Court of Madhya
Pradesh has held that it is the power of the Court to recall a witness for
putting such question to him as the Court thinks fit. This is the discretion of
the Court and not the right of a party to get a witness recalled. In that case,
the documents were not proved and the witness – Manohar Das Sadhu was
already examined and his evidence was closed, therefore, the permission to
cross-examine the witness was denied but in the present case, the
documents have been admitted and exhibited and thereafter, an application
was moved by the petitioner/defendant No.1 for re-examination/further
cross-examination of the plaintiff and if the same is not permitted, it may
adversely affect the rights and interests of a party, therefore, the learned trial
Court has committed an error of law in rejecting the application moved by the
petitioner under Order 18 Rule 17 read with Section 151 of CPC.
Accordingly, the order passed by the learned First Additional District Judge,
Durg dated 10.05.2023 is hereby set aside and the application moved by the
15
petitioner under Order 18 Rule 17 read with Section 151 of CPC is hereby
allowed. Consequences to follow.
Interim relief granted earlier is hereby vacated.
Sd/-
(Rakesh Mohan Pandey)
Judge
Nimmi
[ad_1]
Source link