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M/s. VINS Bio-Product Pvt. Ltd., Rep. by its Executive Director/Managing Director & Another v/s M/s. Mastana Constructions Engineers & Contractors, Rep. by its Managing Partner Hazrath Basha & Another

    Civil Revision Petition No. 4758 of 2017

    Decided On, 05 December 2017

    At, In the High Court of Judicature at Hyderabad

    By, THE HONOURABLE MR. JUSTICE U. DURGA PRASAD RAO

    For the Petitioners: Dishit Battacharjee, Counsel. For the Respondents: S.A. Razak, Counsel.



Judgment Text

(Prayer: Petition under Section Under Article 227 of the Constitution of India against the Order made in I.A.No.1051 of 2017 in O.S.No.274 of 2011 dated 21.08.2017 on the file of the Court of XI Additional Chief Judge, City Civil Court, Hyderabad.

C.R.P.M.P.No.6201 of 2017: Petition Under Section 151 of CPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to stay all further proceedings in O.S.No.274 of 2011 on the file of the XI Additional Chief Judge, City Civil Court, Hyderabad.

Civil Revision Petition No. 4758 of 2017: Petition Under Section 151 of CPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased vacate the interim order granted by this Hon’ble Court in C.R.P.M.P.No.6201 of 2017 in C.R.P.No.4758 of 2017 dated 15.09.2017 in the interest of justice.)

1. The challenge in this Civil Revision Petition is the order dated 21.08.2017 in I.A.No.1051 of 2017 in O.S.No.274 of 2011 on the file of XI Additional Chief Judge, City Civil Court, Hyderabad, whereunder the learned Judge dismissed the petition filed by the defendant under Order XVIII Rule 17 r/w Sec. 151 CPC to recall PW.1 for further cross-examination to confront certain documents.

2) The respondent/plaintiff filed O.S.No.274 of 2011 for a money decree and the petitioner/defendant is contesting the same. While-so, the defendant filed I.A.No.1051 of 2017 to recall PW.1 for further cross-examination on the ground that during earlier cross-examination before the Advocate Commissioner, he could confront only those documents which were already filed by the defendant along with his written statement and the counter claim. However, during defendant’s evidence, some more documents were filed. Those documents could not be confronted to PW.1 during the course of cross-examination as they were filed at a later stage. Unless the subsequently filed documents were confronted to PW.1 by recalling him, the defendant would be put to irreparable loss. The respondent/plaintiff opposed the petition. The Trial Court in its impugned order dismissed the petition on the observation that a petition of this nature ought to have been filed before commencement of the evidence of defendant (DW.1).

Hence the Civil Revision Petition.

3) Heard arguments of Sri Dishit Bhattacharjee, learned counsel for petitioner and Sri S.A.Razak, learned counsel for respondent.

4) Fulminating the order of the Trial Court, learned counsel for petitioner would submit that by the time of cross-examination of PW.1, only some documents which were filed along with written statement were available on record and they were confronted to PW.1 in his cross-examination. Then during the evidence of DW.1, some more documents were filed and marked as exhibits. As those documents were not available by the time of cross-examination of PW.1, they were not confronted to him. Therefore, the petition to recall PW.1 was filed. Unless those documents are confronted to PW.1, the defendant will be put to irreparable loss. Having regard to the fact that the suit is filed for realization of a high amount and also considering the valuable rights of the petitioner/defendant which are at stake in the suit, the petition may be allowed.

5) Per contra, opposing the petition, learned counsel for respondent would submit that PW.1 was cross-examined by the defendant at length and now at this stage when the matter is posted for arguments, a recall petition which is mainly intended to fill up the gaps, cannot be permitted. He placed reliance on the decision reported in Rami Rati vs. Mange Ram and others (AIR 2016 SC 1343), to canvass that a recall petition cannot be used for filling up the gaps in the earlier evidence.

6) The point for determination is:

'Whether there are merits in the CRP to allow?'

7) POINT: On a careful scrutiny, it must be held, the Trial Court fumbled in appreciating the purpose for which the recall of PW.1 was sought for. It is the clear case of defendant that during the cross-examination of PW.1, only some of the documents which were filed along with the written statement could be confronted to him. However, after evidence of plaintiff was closed and during the evidence of defendant, some additional documents were filed along with DW.1’s chief affidavit and they were marked as exhibits on behalf of the defendant. In this factual backdrop, the subsequently marked documents could not be confronted to PW.1 during his earlier cross-examination and unless those subsequent documents are confronted to PW.1 by recalling him, the petitioner/defendant will be put to irreparable loss. It appears, neither the Trial Court nor the plaintiff did dispute the aforesaid facts. However, the Trial Court dismissed the petition on the observation that if the defendant wanted to confront PW.1 with his documents, he ought to have filed the present petition before commencement of his evidence (DW.1). This observation is incorrect in the light of the factual position narrated supra. Since the additional documents were filed only along with the chief affidavit of DW.1, the question of filing the recall petition before the commencement of defendant’s evidence does not arise. Therefore, the order of the Trial Court is not sustainable. In Ram Rati’s case (1 supra), the Apex Court considered its earlier decisions on Order XVIII Rule 17 CPC to expound, when a witness can be recalled. It also discussed the question whether a witness can be recalled for further elaboration of aspects left out in the evidence which was already closed. The Apex Court referred the crux of the earlier judgments to the effect that witness can be recalled to clarify any issue or doubt but he cannot be recalled to fill up the lacunae in the evidence of witness which was already recorded. Ultimately the Apex Court held that recall of a witness for further elaboration on the left out points is wholly impermissible in law.

8) There is no demur regarding the above ratio. What is to be seen in this case is whether, the defendant by invoking recall of PW.1 wants to fill up any lacunae in his earlier evidence or wants to make a further elaboration on the left out points. If that be his intention, certainly he does not deserve for recall of PW.1. However, in my considered view, here the intention is altogether a different one. Certain documents which were subsequently filed by him during the course of his evidence were not confronted to PW.1 during his cross-examination and unless those documents are confronted to PW.1, he cannot establish his case. This, in my view, does not amount to either filling up the lacunae or further elaboration. It must be emphasized that every party has a right to confront his documents to the other side for admission or denial in order to establish his case. Such a right is inherent in civil administration of justice. Otherwise no party can establish his case. The Courts in such situation cannot act pedantically when valuable rights of the parties are at stake. If the Courts feel such a right is opted to be exercised belatedly, they can impose cost

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s rather than declining to accede their supplications. 9) In the result, this Civil Revision Petition is allowed by setting aside the impugned order. Consequently, I.A.No.1051 of 2017 in O.S.No.274 of 2011 on the file of XI Additional Chief Judge, City Civil Court, Hyderabad, is allowed on the condition of petitioner/defendant depositing costs of Rs.2,000/-(Rupees two thousand only) with City Civil Court Legal Services Authority, Hyderabad, within a week from the date of this order. On such deposit, the Trial Court shall recall PW.1 and fix a suitable date convenient for both parties for cross-examination, in which event, the petitioner shall complete the cross-examination on a single day. No costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.
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