RAM RATIversusMANGE RAM (D) THROUGH LRS. AND ORS.

                            r201612 S.C.R. 9


                               RAM RAT!                                        A
                                    v.
          MANGE RAM (D) THROUGH LRS. AND ORS.
                    (Civil Appeal No. 1684of2016)
                          FEBRUARY 23, 2016                                    B

[KURIAN JOSEPH AND ROHINTON FALi NARIMAN, JJ.]
       Code of Civil Procedure, 1908- Order 18 r. 17-Application
under - Scope of - Po11'er of the court u/r 17 is though discretionary,
has to be used sparingly - The po11'er cannot he invoked to fill up
the omission in the evidence already led by a 1Pitness, or for the
                                                                               c
purpose of filling up a lacuna in the evidence - 'No prejudice is
caused to either party' also cannot be a ground to be invoked u/1:
J 7 - ff the court invokes the poll'er u/r. J 7, it has to see that trial is
not unnecessarily protracted on that ground - However, the rigour
of r. 17 does not affect the inherem powers of the court - Jn the              D
present case, the application ulr. 17 for fi1rther elaboration 011 the
left out points is impermissible in law.
      Allowing the appeal, the Court
      HELD: 1. The basic purpose of Ruic 17 of Order 18 C.P.C.
is to enable the court to clarify any position or doubt, and the               E
court may, either .rno 1110/11 or on the request of any party, recall
any witness at any stage in that regard. This power can he
exercised at any stage of the suit. No doubt, once the court recalls
the witness for the purpose of any such clarification, the court
may permit the parties to assist the court by examining the                    F
witness for the purpose of clarification required or permitted by
the court. The power under Rule 17 cannot be stretched any
further. The said power cannot be invoked to fill up omission in
the evidence already led by a witness. It cannot also be used for
the purpose of filling up a lacuna in the evidence. 'No prejudice
is caused to either party' is also not a permissible ground to                 G
invoke Rule 17. No doubt, it is a discretionary power of the court
but to be used only sparingly, and in case, the court decides to
invoke the provision, it should also see that the trial is not
unnecessarily protracted on that ground. (Para 11] (14-A-C]
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10             SUPREME COURT REPORTS                   (2016] 2 S.C.R.


A           2. The rigour under Rule 17, however, does not affect the
     inherent powers of the court to pass the required orders for ends
     of justice to reopen the evidence for the purpose of further
     examination or cross-examination or even for production of fresh
     evidence. This power can also be exercised at any stage of the
     suit, even after closure of evidence. Thus, the inherent power is
B
     the only recou.rse. [Para 14] [15-G]
          3. Thus, in view of the legal position under Order 18 Rule
     17 read with Section 151 of the CPC, the impugned orders
     passed by the trial court as affirmed by the High Court to recall a
     witness at the instance of the respondent "for further elaboration
c    on the left out points", is wholly impermissible in law. [Para 18)
     [18-D]
           Vadiraj Naggappa Vernekar (Dead) Through Lrs. v.
           Sharadchandra Prabhakar Gogate (2009) 4 SCC 410:
           2009 (2) SCR 1071; K.K. Ve/usamy v. N. Pa/anisamy
D          (2011) 11 SCC 275:2011 (4) SCR 31; Bagai
           Cans/ruction Through its Proprietor La/it Bagai v.
           Gupta Building Material store (2013) 14 SCC 1: 2013
           (2) SCR 116 - relied on.
                           Case Law Reference
E    2909 (2) SCR 1071              relied on.            Para 12
     2011 (4) SCR 31                relied on.            Para 13
     2013 (2) SCR 116               relied on.            Para 17
          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1684
     of2016
F          From the Judgment and Order dated 09.04.2013 in Civil
     Miscellaneous (Main) No. 507 of 2011 passed by the High Court of
     Delhi at New Delhi.
          Pritesh Kapur, Om Prakash, A. Abhinav, (For Vivek Narayan
     Sharma), Advs. for the Appellant.
G
          Praveen Jain, Sidharth Jain, Ajay Kumar Jain, Advs. for the
     Respondents.
     The Judgment of the Court was delivered by
           KURIAN, J.: I. Leave granted.
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RAM RAT! v. MANGE RAM (D) THROUGH LRS. [KURIAN J.]                            11


       2. Whether a witness can be recalled under Order 18 Rule 17 of A
The Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code')
for further elaboration of aspects left out in evidence already closed, is
the issue for consideration in this case.
       3. There are two suits filed by the respective parties and pending
before the Tis Hazari Courts at Delhi. Civil Suit No. 43 of2009 was filed     B
by the respondents herein for declaration and injunction in respect of the
plaint schedule property. In respect of very same property, the appellant
herein also filed a suit seeking permanent injunction and that suit has
been numbered as Civil Suit No. 44 of2009. The suits were consolidated
for common trial, on joint request, by order dated 08.12.2007. Suit No.
43 of2009, with the consent of the parties, was ordered to be tried in the    c
court where Suit No. 44 of2009 was pending by order dated 26.09.2005
of the District Judge, Delhi. Much before that, evidence in Civil Suit
No. 44 of 2009 had commenced and the appellant herein had been
examined as PW-I and the respondents herein had cross-examined PW-
1as well. That evidence was closed on 16.04.2005. After the consolidation     D
ofthe two suits, the respondents herein filed an application on 13.04.2010.
We shall extract the averments made in the said application as under:
      "APPLICATION ON BEHALF OF DEFENDANT FOR
      DISCHARGING THE STATEMENT OF PW- I AND
      EXAMINATION OF WITNESS I.E. PW-I AFRESH UNDER E
      ORDER 18 RULE 17 C.P.C. READ WITH SECTION 151 C.P.C.
      Sir,
               The applicant most respectfully submits as under:-
      1. That the plaintiff examined PW- I. Sh. Chottu Ram as PWI- on
      6.12.2004. His cross examination was concluded on 16.4.2005.       F
      2. That this Hon'ble Court consolidated the present suit with
      another suit titled as Mange Ram Vs. Chander Kanta etc. vide its
      order dated 8.12.2007.
      3. That while passing the order ofconsolidation dated 8.12 .2007,
      this Hon'ble Court ordered as under:-                              G
           "It has been so urged on behalf of both contesting sides that
           trial in two cases be conducted commonly and evidence Jed in
           either case be read in both these cases."
      4. The directions or observations of this Hon'ble Court as
      reproduced above operates prospectively and not retrospectively.
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12              SUPREME COURT REPORTS                          [2016] 2 S.C.R.


A          5. That when the Hon'ble Court ordered that evidence in one
           case may be read in evidence in another case, then plaintiff in
           Mange Ram Vs. Chander Kanta & Ors. would be deprived of
           the oppo1tunity of cross examination of PW- I which was concluded
           on 16.4.2005. much prior to the date of order of consolidation.
B          6. That as per settled position of law on this point and as per
           terms of order of this Hon 'ble Court dated 08. 12.2007, either the
           PW-I be examined afresh or opportunity to cross examine the
           PW-I may be granted to the applicant/plaintiff in Mange Ram
           Vs. Chander Kanta & Ors.
           It is, therefore, prayed that PW-I may kindly be examined afresh
c          or opportunity to cross examine the PW-I in Ram Rati Vs. Mange
           Ram etc. may kindly be granted to the applicant."
            4. By order dated 15.04.2008 of the Additional District Judge,
     Delhi in Civil Suit No. 43 of2009 filed by the respondents, the suit as
     against Defendant Nos. 5 and 6 was rejected and it was held that the
D    plaint did not disclose any cause of action against then~. Defendant No.
     5 was the plaintiff in Suit No. 44 of 2009 and Defendant No. 6 fs her
     husband. That Defendant No. 5 is the applicant before this Court.
           5. Thus. the only ground taken up in the application filed under
     Order 18 Rule 17 of the CPC is that after consolidation of the suits, the
E    plaintiff in Civil Suit No. 43 of2009 should get an opportunity to cross-
     examine the PW-I (Defendant No. 5 in Civil suit No. 43 of2009).
            6. It is interesting to note that in the order dated 24.02.20 I0 passed
     by the Additional District Judge in Civil Suit No. 44 of2009, it has been
     observed by the Court that the plaintiff in Civil Suit No. 44 of2009 is no
F    more a party to Civil Suit No. 43 of 2009 and the earlier order of
     consolidation of suits dated 08.12.2007 was maintained, further clarifying
     that the past evidence of plaintiff in Civil Suit No. 44 of2009, which has
     already been recorded, to be treated as the main suit.
            7. We shall extract the order dated 24.02.2010, which reads as
G    follows:
            "Since the facts in this suit and suit No. 43/09 are intertwined
            even though Plaintiff is no more a party to suit No. 43/09, her
            claim for declaration to suit property therein may have reflection
            on the entitlement of Plaintiff, therefore, with the consent of both
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RAM RAT! v. MANGE RAM (D) THROUGH LRS. [KURIAN J.]                              13


       sides, the consolidation order dated 8.12.2007 is being maintained       A
       and suit No. 44109 where past evidence of Plaintiff Ram Rati has
       been recorded is treated as main suit."
       8. But it has to be noted that the Suit No. 43 of 2009 sta11ds
rejected against that PW-I (Defendant No.5). Not only that, being a
defendant in Suit No. 44 of 2009, PW-I had been cross-examined also             B
by the respondent herein. What is lost, ifat al I it can be termed so, is the
opportunity to cross-examine in the capacity as plaintiff in O.S. No. 43
of 2009. But that suit, as noted above, had already been rejected as
against PW-I (Defendant No. 5), appellant herein. Unfortunately, both
the courts have taken the view that the examination of PW- I in Suit No.
44 of2009 having taken place prior to consolidation, the plaintiff in Suit      c
No. 43 of2009 did not get an opportunity to cross-examine him.
       9. The trial court, by order dated 18.12.20 I 0, allowed the
application filed by the respondent ... "for further elaboration on the left
oHt points by the parties ... ". The High Court, in the impugned order,
endorsed the view taken by the trial court, holding that ... "reading the       D
impugned order shows that the witness has been recalled, if available
for further elaboration on the left out points to both the parties". Since,
the High Court and trial court have taken a wholly wrong approach in
the matter and against the settled principles of law, it has become
necessary for us to restate the law as well.                                    E
       I0. Order 18 ofCPC deals with hearing of the sttit and examination
of witnesses. By an amendment introduced thereunder with effect from
01.02.1977, Rule 17 A was introduced permitting production of evidence
not previously known or which could not be produced despite due
diligence. It appears, the amendment only caused unnecessary protraction        F
of the litigation, and hence, the said provision was omitted by The Code
of Civil Procedure (Amendment) Act, 1999 with effect from 01.07.2002.
However, Rule 17 was retained which reads as f\1llows:
       "17. Court may recall '1nd examine witness.- The court may
       at any stage of a suit recall any witness who has been examined          G
       and may (subject to the law of evidence for the time being in
       force) put such questions to him as the court thinks fit."
      11. The respondent filed the application under Rule 17 read with
Secticn 151 of the CPC invoking the inherent powers of the court to
make orders for the ends of justice or to prevent abuse of the process of H
14             SUPREME COURT REPORTS                        (2016] 2 S.C.R.


A the court. The basic purpose of Rule 17 is to enable the court to clarify
  any position or doubt, and the court may, either suo 1110111 or on the
  request of any party, recall any witness at any stage in that regard. This
  power can be exercised at any stage of the suit. No doubt, once the
  court recalls the witness for the purpose of any such clarification, the
B court may permit the parties to assist the court by examining the witness
  for the purpose of clarification required or permitted by the court. The
  power under Rule 17 cannot be stretched any further. The said power
  cannot be invoked to fill up omission in the evidence already led by a
  witness. It cannot also be used for the purpose of filling up a lacuna in
  the evidence. 'No prejudice is caused to either party' is also not a
C permissible ground to invoke Rule 17. No doubt, it is a discretionary
  power of the court but to be used only sparingly, and in case, the court
  decides to invoke the provision, it should also see that the trial is not
  unnecessarily protracted on that ground.
         12. In Vadiraj Naggappa Vernekar (Dead) Through LRs. v.
D Sharadchandra Prabhakar Gogate 1, this principle has been summarized
  at paragraphs- 25, 28 and 29:
          "25. In our view, though the provisions of Order 18 Rule 17 CPC
          have been interpreted to include applications to be filed by the
          pat1ies for recall of witnesses, the main purpose of the said Rule
E         is to enable the court, while trying a suit, to clarify any doubts
          which it may have with regard to the evidence led 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.
            xx.x                      xxx                       xxx
F         28. The power underthe 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.
G         29. 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 hereinabove, such power is to be
          invoked not to fill up the lacunae in the evidence of the witness
H    '(2009) 4 sec 410
RAM RAT! v. MANGE RAM (D) THROUGH LRS. [KURIAN J.]                               15


         which has already been recorded but to clear any ambiguity that         A
         may have arisen during the course of his examination."
         13. In K.K. Velusamy v. N. Palanisamy', the principles
enunciated in Vadiraj (supra) have been followed, holding at paragraphs-
9 and IO:
                "9. Order 18 Rule 17 of the Code enables the court, at any       B
         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 cou11
         either on its own motion or on an application filed by any of the       c
         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 any 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                    D
         Naggappa Vernekar v. Sharadchandra Prabhakar GoKafe.)
                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-chiefor cross-examination or to place additional
         material or evidence which could not be produced when the               E
         evidence was being recorded. Order 18 Rule 17 is primarily a
         provision enabling the court to clarifj' any issue or doubt, by
         recalling any witness either suo motu, 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       F
         may, of course, permit the parties to assist it by putting some
         questions."
       14. The rigour under Rule 17, however, does not affect the inherent
powers of the court to pass the required orders for ends of justice to
reopen the evidence for the purpose of further examination or cross-
                                                                                 G
examination or even for production of fresh evidence. This power can
also be exercised at any stage of the suit, even after closure of evidence.
Thus, the inherent power is the only recourse, as held by this Court in
K.K. Velusamy (supra) at paragraph-I I, which reads as follows:
 2
     (2011) II SCC275                                                            H

                                                  I
                                                 c.
16             SUPREME COURT REPORTS                          [2016] 2 S.C.R.



A          11. There is no specific provision in the Code enabling the parties
           to reopen the evidence for the purpose offu1ther examination-in-
           chief or cross-examination. Section I 5 I of the Code provides that
           nothing in the Code shall be deemed to limit or otherwise affect
           the inherent powers of the court to make such orders as may be
           necessary for the ends of justice or to prevent the abuse of the
B
           process of the court. In the absence of any provision providing
           for reopening of evidence or recall of any witness for further
           exa111ination or cross-exa111ination, for purposes other than securing
           dari lication re4u ired by the cou11, the inherent power under Section .
            I 5 I of the Code, subject to its limitations, can be invoked in
c          appropriate cases to reopen the evidence and/or recall witnesses
           for further examination. This inherent power of the court is not
           affocted by the express power conferred upon the court under
           Order 18 Rule 17 of the Code to recall any witness to enable the
           court to put such question to elicit any clarifications."

D          I 5. After surveying the various principles stated by this Court on
     Section I 5 I from 1961, in K.K. Vclusamy (supra), they have been
     succinctly summarized as follows under paragraph-12:
           ..xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx

           a) Section I 5 1 is not a substantive provision which cremes or
E          confers any power or jurisdiction on courts. It merely recognises
           the discretionmy power inherent in eve1y comt as a necessary
           corollary for renderingjustice 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
F          process.
           (b) As the provisions of the Code are not exhaustive, Section 1SI
           recognises and confirms that if the Code does not expressly or
           impliedly cover any pa1ticular procedural aspect, the inherent
           power· can be used to deal with such situation or aspect. if the
G          ends of justice warrant it. The breadth of such power is
           coextensive with the need to exercise such power on the facts
           and circumstances.
           (c) /\court has no power to do that which is prohibited by law or
           the Code, by purported exercise o!' its inherent powers. If the
           Code contains provisions dealing with a particular topic or aspect,
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RAM RATI v. MANGE RAM (D) THROUGH LRS. [KURIAN J.]                           17



     and such provisions either expressly or by necessary implication        A
     exhaust the scope of the power of the cou1t or the jurisdiction that
     may be exercised in relation to that malter, the inherent power
     cannot be invoked in order to cut across the powers conferred by
     the Code or in a manner inconsistent wfrh such provisions. In
     other words the court cannot make use of the special provisions
                                                                             B
     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        c
      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 legislature.
      (e) While exercising the inherent power, the court will be doubly
      cautious, as there is no legislative guidance to deal with the         D
      procedural situation and the exercise of power depends upon the
      discretion and wisdom of the court. and in 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 bla11che to       E
      grant any relief.
      (f) The power under Section I 5 I wi II 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           F
      exercise is to meet the ends of justice and to prevent abuse of
      process of cou1t."
       16. Some good guidance on invocation of Section 151 of the CPC
to reopen an evidence or production of fresh evidence is also available
in K.K. Vclusamy (supra). To quote paragraph-14:
                                                                             G
      "14. The amended provisions of the Code contemplate and expect
      a trial court to hear the arguments immediately atier the completion
      of evidence and then proceed to judgment. Therefore. it was
      unnecessary to have an express provision for reopening the
      evidence to examine a fresh witness or for recalling any witness
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18              SUPREME COURT REPORTS                         [2016] 2 S.C.R.



A          for further examination. But if there is a time gap between the
           completion of evidence and hearing of the arguments, for
           whatsoever reason, and if in that interregnum, a party comes across
           some evidence which he could not lay his hands on earlier, or
           some evidence in regard to the conduct or action of the other
           party comes into existence, the court may in exercise of its inherent
B
           power under Section 151 of the Code, permit the production of
           such evidence if it is relevant and necessary in the interest of
           justice, subject to such terms as the court may deem fit to impose."
           17. Vadiraj (supra) and K.K. Velusamy (supra) have also found
     affirmation by this Court in Bagai Construction Through its
c    Proprietor Lalit Bagai v. Gupta Building Material Store'.
            18. The settled legal position under Order 18 Rule 17 read with
     Section 151 of the CPC, being thus very clear, the impugned orders
     passed by the trial court as affirmed by the High Court to recall a witness
     at the instance of the respondent "for further elaboration on the left out
D    points", is wholly impermissible in law.
           19. In the above circumstances, the impugned order is set aside
     and the appeal is allowed.
           20. We are informed that during the pendency of the appeal, the
E    evidence has been closed and what remains is only the final arguments.
     In view of the above, we direct the trial court to dispose of the suits
     expeditiously and preferably within one moth from the date ofreceipt of
     a copy of this order.
           21 . There shall be no order as to costs.
F    Kalpana K. Tripathy                                         Appeal allowed.




     'r2013) 14 sec 1