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Jodhpur Gums & Chemicals Pvt. Ltd. v. Punjab National Bank & Ors.
Factual and Procedural Background
This revision challenges the order of the learned Additional District Judge No. 2, Jodhpur dated 22-8-98, which allowed the plaintiff Bank's application to re-summon two witnesses (PW-2 Utsav Raj Bhandari and PW-3 Manak Chand Jain) to prove certain documents that were not exhibited earlier due to an oversight by the plaintiff’s advocate. The revision petition contends against this order.
Legal Issues Presented
- Whether a witness can be recalled under Order 18 Rule 17 CPC to fill gaps caused by an advocate’s oversight in not exhibiting documents during initial examination.
- Whether the trial court erred in allowing the plaintiff to recall witnesses under Section 151 CPC despite objections that it would cause prejudice to the defendant and prolong the case.
- The scope and limitations of recalling witnesses under Order 18 Rule 17 CPC and Section 151 CPC in light of precedent.
Arguments of the Parties
Petitioner’s Arguments
- Order 18 Rule 17 CPC does not permit recalling a witness merely to fill lacunae or gaps in evidence caused by the party’s own negligence.
- The application to recall witnesses was moved with an oblique motive to prolong the case, as other witnesses were not present and the plaintiff’s evidence was nearing closure.
- Witnesses had already been cross-examined and the defendant’s case had been put to them; recalling them to prove additional documents would cause serious prejudice.
- Relied on precedents such as Steelage Industries Limited v. Smt. Chander Bagai, Ram Sahai v. Kuberdan, and Shyamapada Neogy v. Asoke Kr. Biswas to support the contention that recalling witnesses under Order 18 Rule 17 CPC is limited and should not be allowed to fill evidentiary gaps.
Respondent’s (Plaintiff Bank’s) Position (as inferred from court’s analysis)
- The plaintiff should not suffer due to an oversight of its advocate in failing to exhibit certain documents.
- The suit is filed by a Bank and does not involve any personal interest, negating any oblique motive allegations.
- Recalling witnesses to prove eight documents already on record but not exhibited is justified and does not amount to filling lacunae improperly.
- The trial court’s reliance on Section 151 CPC to allow the application was appropriate to ensure substantial justice.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Steelage Industries Limited v. Smt. Chander Bagai, AIR 1992 Bom 406 | Limitations on recalling a witness under Order 18 Rule 17 CPC; proper procedure to supplement examination in chief after cross-examination | Distinguished on facts; allowed recalling witnesses here to prove documents due to advocate’s oversight, emphasizing substantial justice |
| Ram Sahai v. Kuberdan, 1956 Raj LW 306 | Order 18 Rule 17 CPC authorizes recalling a witness only for court’s necessary questions, not for further cross-examination by parties | Held not applicable here because the recall was for proving documents missed due to advocate’s lapse, not for further cross-examination |
| Shyamapada Neogy v. Asoke Kr. Biswas, 1967 (71) Cal WN 747 | Recall of witnesses under special circumstances only | Supported trial court’s discretion to recall witnesses under Section 151 CPC in special circumstances without causing prejudice |
| Sultan Saleh Bin Omer v. Vijayachand Sirimal, AIR 1966 Andh Pra 295 | Discretion under Section 151 CPC | Trial court relied on this precedent to justify allowing the application under inherent powers |
| Chairman Notified Area Council, Bhanjanagar v. Kudini Lingaraju Patra, AIR 1974 Orissa 17 | Discretionary power of court under Section 151 CPC | Used by trial court to support the order allowing recall of witnesses |
| Shankar Bhatt v. Bhima Bhatt, AIR 1974 Karnataka 123 | Inherent powers of court under Section 151 CPC | Also relied on by trial court to validate the allowance of the application |
Court's Reasoning and Analysis
The court noted that the revision petition was based on the contention that Order 18 Rule 17 CPC prohibits recalling witnesses to fill evidentiary gaps caused by the party’s own advocate’s negligence. However, the court emphasized that a party should not suffer due to an advocate’s oversight, especially in a suit filed by a Bank where no personal interest is involved. The court distinguished the cited precedents, particularly Steelage Industries Limited, where recalling a witness was disallowed due to procedural irregularities, clarifying that in the present case, the recall was to prove documents already on record but not exhibited due to oversight.
The court further observed that the trial judge had exercised discretion under Section 151 CPC, an inherent power to do substantial justice, and that the defendant was not prejudiced as they were compensated with costs and given an opportunity to cross-examine the witnesses again. The court found no error of jurisdiction or law in the trial court’s order and thus declined to interfere.
Holding and Implications
The revision petition is dismissed at the admission stage.
The direct effect of this decision is that the trial court’s order allowing the plaintiff Bank to recall witnesses to prove certain documents despite the lapse of the plaintiff’s advocate is upheld. No new precedent is established; the ruling affirms the trial court’s discretion under Section 151 CPC to prevent injustice caused by procedural lapses without causing prejudice to the opposing party.
1. This is a revision against the order of learned Additional District Judge No. 2, Jodhpur dated 22-8-98 by which he allowed an application of the plaintiff Bank to re-summon PW-2 Utsav Raj Bhandari and PW-3 Manak Chand Jain in order to prove certain documents which were left unexhibited because of lapse on the part of the advocate of plaintiff.
2. I have heard the learned counsel for the petitioner and perused the order as well as application of the plaintiff.
3. Learned counsel for the petitioner submitted that according to Order 18 Rule 17 CPC a witness cannot be recalled to fill up lacuna. He submitted that an application under Order 18 Rule 17 CPC was moved with an oblique motive to prolong the case as other witnesses were not present and the evidence of the plaintiff was likely to be closed. He relied on AIR 1992 Bombay 406. Steelage Industries Limited v. Smt, Chander Bagai. He also cited 1956 Raj LW 306, Ram Sahai v. Kuberdan and Shyamapada Neogy v. Asoke Kr. Biswas,(l967) 7I Cal WN 747. He submitted that the witnesses have been cross examined and the case of the defendant has been put to them and in case these witnesses are recalled to prove some other documents, the witnesses will be on the one hand filling up the lacuna of the case of the plaintiff and on the other hand serious prejudice will be caused to the defendant. Learned trial Judge after relying on AIR 1966 Andh Pra 295. Sultan Saleh Bin Omer v. Vijayachand Sirimal, AIR 1974 Orissa 17, Chairman Notified Area Council, Bhanjanagar v. Kudini Lingaraju Patra and AIR 1974 Karnataka 123, Shankar Bhatt v. Bhima Bhatt, allowed the application under Section 151 CPC.
4. The application which was moved before the trial court stated that ihe plaintiff wanted to prove eight documents which were already on record but which could not be exhibited and proved due to oversight as there was a large number of documents on the record. Learned counsel for the petitioner submitted that the oversight of the advocate would not entitle the plaintiff to fill up the lacuna. To this, my reply would be that a party should not suffer because of lapse on the part of an advocate. When there was oversight by the advocate of the plaintiff, the Bank should not suffer. Secondly, it is not a suit filed by an individual but filed by a Bank in which no personal interest of any person on behalf of the plaintiff is involved. Therefore, the argument that the application was moved with oblique motive is not acceptable. In Steelage Industries Limited case, (AIR 1992 Bom 406) (supra) the case was under Rent Act for possession on the ground of bona fide requirement. The advocate in charge of the case met with an accident on his way to court and examination in chief of the plaintiff was conducted by another advocate on some date in absence of advocate in charge without putting essential questions on bona fide requirement. Witness was also cross examined. The application for permission to supplement examination in chief was filed. It was held that under inherent powers plaintiff's advocate cannot be allowed to conduct examination as that would amount to circumventing provisions of Code instead it was held that the proper order would be after cross examination is completed court should recall plaintiff and put to her questions in relation to bona fide requirement as contained in plaint and thereafter allow cross examination in respect thereof. Even in this citation substantial justice was allowed to be done.
5. In Ram Sahai v. Kuberdan, (1956 Raj LW 306) (supra) it was held that certainly Order 18 Rule 17 authorises a court to recall a witness but for the purposes of putting any questions which the court itself might think necessary. It does not authorise a party to have a witness, whom he has already cross examined, recalled for the purpose of further cross examination. This citation obviously does not apply to the case in hand because here the plaintiff is himself recalling the witness because certain documents were not exhibited due to the lapse on the part of the advocate. In Shyamapada Neogy's case, (1967 (71) Cal WN 747) (supra) it was observed that it is only under special circumstances that such an order can be passed. I am of the view that when the court below after having considered ail the points has allowed the application under Section 151 CPC, the order should not be interfered with as no prejudice is, being caused to the defendant as they have been compensated by payment of cost of Rs. 2,000/-and will have opportunity to cross examine witnesses. The trial court has not committed an error of jurisdiction.
6. Consequently, there is no force in this revision and the same is hereby dismissed at the admission stage.
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