LexVADIRAJ NAGGAPPA VERNEKAR (D) THROUGH LRS. versus SHARAD CHAND PRABHAKAR GOGATE
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2009] 2 S.C.R. 1071 VADIRAJ NAGGAPPA .VERNEKAR (D) THROUGH LRS . A . .. --1 v SHARAD CHAND PRABHAKAR GOGATE Civil Appeal No. 1172 of 2009 FEBRUARY 24, 2009 B [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.] Code of Civil Procedure, 1908: Order 18 rule 17 - .. -+ Power of Court to recall and examine witness - Held: Witness examined by way of affidavit evidence can be recalled for giving c further evidence with regard to facts not mentioned in the affidavit- The purpose of the provision is to clarify doubts with regard to evidence and not to fill up omissions in the evidence of the witness who was already examined - Power under 0. 18, r. 17 is to be sparingly exercised - On facts, no case made out ;. to invoke provisions of 0. 18 r. 17 - Witness. D The question which arose for consideration in the present 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 E in the affidavit. Dismissing the appeal, the Court J.. HELD: 1. The main purpose of Order 18 rule 17 CPC is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led F . 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. The evidence which was sought to be introduced by recalling the witness in question, was available at the time when the affidavit of G .,A evidence of the witness was prepared and affirmed. It was not as if certain new facts were discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant , 1071 H 1072 SUPREME COURT REPORTS [2009] 2 S.C.R. A case, witness was shown to have been actively involved r--·. 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 B be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arose out of the fact situation in the present case, would not make out a case for recall of a _., witness after his examination was completed. The power t I \ c 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. [Para 16] [1078-C-G] D -<l 2. 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 such power is to E 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 F permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness there.after. 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 G 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. [Para 17] [1078- H; 1079-A-D] H Smt. M.N. Amonkar & Ors. v. Dr. S.A. Johari (1984) 2 "" - ~ --! _____,.. J ~ J> 4 ~ -1 ~ ' ,,4. (,.: " ~ VADIRAJ NAGGAPPA VERNEKAR (D) THROUGH LRS. V.1073 SHARAD CHAND PRABHAKAR GOGATE SCC 354; S.S. S. Durai Pandian v. Samuthira Pandian AIR (1998) Mas 323; Satinder Singh v. Sukhdev AIR (1999) HP 72; Om Prakash v. Sarupa & Ors. AIR (1981) P&H 157; Jodhpur Gums & Chemicals Pvt. Ltd. v. Punjab National Bank & Ors. AIR (1999) Raj. 38; SunderTheaters v. Allahabad Bank, Jhansi AIR (1999) All. 14 - referred to. Case Law Reference (1984) 2 sec 354 referred to Para 7 referred to Para 8 A B AIR
Excerpt shown. Read the full judgment & AI analysis in Lexace.