Citation Codes

Equivalent Citations

citation codes

Case Number

C.R.P No. 1631 of 1973 against the order dated 8th February, 1973 on I.A No. 6 in O.S No. 133 of 1970 passed by the Munsiff, Buntwal

Attorney(S)

Sri P. Ganapathy Bhat for the Petitioner.
Sri P. Vasudeva Aithal for the Respondent.

Judges

Range Gowda, J.

Acts

Rule 17 of Order 18 of the Code of Civil Procedure (herenafter referred to as Rule 17),
provisions of Sec. 151 C.P.C and Rule 17
Sections 91 and 92 of the Evidence Act
Section 151 C.P.C:I.A
Section 151 C.P.C
aside.8. Rule 17

See more information ...

Smart Summary

Case Summary — Revision Petition concerning Rule 17, Order 18 CPC and Section 151 CPC (Range Gowda, J.)

Factual and Procedural Background

The petition arises from a suit (O.S. No. 133 of 1970, Munsiff, Buntwal, South Kanara) filed by the petitioner for recovery of the cash value of an "owelty" entitlement (520 kgs. of arecanut) that originally belonged to Thimmanna Bhat under a registered partition deed dated 24 August 1966. By a Will (Exhibit P-1), Thimmanna Bhat purportedly bequeathed his right to collect the owelty, after his death, in favour of the petitioner. The respondents denied that the right was heritable, contending it existed only for Thimmanna Bhat's lifetime. One issue in the suit was whether Thimmanna Bhat had a heritable right to collect the owelty.

The respondents examined Shankar as D.W.2 (an attestor of the partition deed). Much later the first respondent filed I.A. VI under Section 151 CPC seeking to recall D.W.2 for further examination on the ground that a material fact (that Thimmanna Bhat was entitled to collect owelty only during his lifetime) was not recorded in D.W.2's deposition and needed to be elicited. The petitioner resisted.

The learned Munsiff found that the record did not disclose that D.W.2 had stated the life-only nature of the right, but nonetheless allowed I.A. VI on the premise that the omission might have been inadvertent. In the impugned order the Munsiff permitted the defendants to recall and examine D.W.2 and allowed the plaintiff to further cross-examine him, stating that the power to recall a witness is traceable to Rule 17 (Order 18 Rule 17 CPC) and not to Section 151 CPC.

The petitioner challenged that order in revision, arguing (1) Rule 17 permits only the court to recall a witness suo motu and not at a party's instance, and (2) when a witness is recalled under Rule 17 only the court may put questions and parties have no right to examine, cross-examine or re-examine the recalled witness.

Legal Issues Presented

Whether a party to a suit has a right under Rule 17, Order 18 CPC to recall a witness for the purpose of further examining, cross-examining or re-examining the witness, or whether recall under that rule is strictly a power exercisable only by the court on its own motion.
Whether, when a witness is recalled under Rule 17, the power to put questions (and to permit cross-examination) vests exclusively in the court such that parties cannot themselves examine, cross-examine or re-examine the recalled witness.
Whether the court could properly have granted the relief sought under Section 151 CPC (inherent jurisdiction) instead of, or in addition to, acting under Rule 17.

Arguments of the Parties

Petitioner's (Appellant's) Arguments — Sri Ganapathi Bhat

Under Rule 17 (Order 18 Rule 17 CPC) it is only the court which can recall a witness suo motu; a party has no right to move the court to recall a witness under that Rule.
When a witness is recalled under Rule 17, only the court can put questions to him and, ordinarily, no cross-examination is permitted on answers given to such court-put questions without leave; thus the Munsiff exceeded his jurisdiction by permitting the parties to examine and cross-examine D.W.2.
At most, if the Munsiff properly exercised his discretion to recall D.W.2 under Rule 17, the Munsiff should have put the relevant questions himself to elicit the alleged omitted fact rather than permitting further examination by the parties; if necessary, leave to cross-examine could be given in respect of answers to the court's questions.

Respondents' (Respondent's) Position

In I.A. VI (under Section 151 CPC) the first respondent stated that D.W.2, in his evidence, had deposed that Thimmanna Bhat was entitled to collect owelty only during his life-time but that fact did not find a place in the recorded deposition; further examination was therefore necessary to elicit that fact for a just decision.
The learned Munsiff accepted the possibility of inadvertence in recording and allowed recall and further examination/cross-examination accordingly.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Madkubkai Amthsdal v. Amthalal Nanala	Authority that the power to act under Order 18, Rule 17 is not confined to the court acting suo motu; a litigant can ask the court to act under O.18 R.17 or the court can do so on its own motion.	The Court relied on this decision to reject the petitioner's contention that parties cannot request the court to recall a witness under Rule 17; the precedent supports that either the court or a party may invoke Rule 17 to recall a witness.
Sultan Saleh bin Omer v. Vijayachand Sirina / Sultan Saleh Bin Omer v. Vijayachand Sirmal	Holds that the right under Rule 17 to recall a witness is not restricted to the court on its own motion (it may be exercised at a party's instance), and that the right to put questions under Rule 17 is given to the court with cross-examination on answers to the judge's questions not ordinarily allowed without leave.	The Court cited this authority both to confirm that a party may invite the court to act under Rule 17 and to support the proposition that questions under Rule 17 are for the court to put and that cross-examination is ordinarily not permitted on answers to those court-put questions; this was central to holding that permitting parties themselves to examine/cross-examine under Rule 17 was impermissible.

Court's Reasoning and Analysis

The court began by reproducing Rule 17 (Order 18 Rule 17 CPC): "The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit."

Interpreting the statutory language, the Court concluded there is no textual restriction in Rule 17 that limits its operation to the court acting only suo motu. The words used in the rule do not preclude a party from asking the court to act under the Rule. The Court relied on Madkubkai Amthsdal v. Amthalal Nanala and Sultan Saleh bin Omer v. Vijayachand to support this conclusion that either the court or a litigant may invoke Rule 17 to recall a witness.

However, the Court distinguished between (a) the right to seek recall under Rule 17 and (b) the right to put questions to a recalled witness. The Court held that Rule 17 vests the power to put questions to the recalled witness in the court itself. The provision makes it "abundantly clear" that the court — not the parties — is given the right to put such questions and that cross-examination upon answers to those questions is not ordinarily permitted without the leave of the court. The Court cited the Sultan Saleh decisions for this proposition.

Applying these principles to the facts, the Court found a mixed outcome:

The Munsiff was correct in exercising his discretion to recall D.W.2 because he believed the pertinent fact may have been omitted through inadvertence; therefore the decision to allow recall was not interfered with.
However, the Munsiff was in error in permitting the parties themselves to further examine and cross-examine D.W.2 while purporting to act under Rule 17. That aspect of the impugned order exceeded the scope of Rule 17 because it delegated to the parties the court's exclusive function to put questions to a recalled witness (and to supervise cross-examination by leave).
The Court observed that if the Munsiff had thought Rule 17 did not empower him to permit party-led examination, he could have exercised inherent powers under Section 151 CPC to allow further examination by parties; but the record showed the Munsiff instead erroneously relied upon Rule 17 for that power.

Consequently, the Court modified the impugned order: it set aside the direction permitting the parties to examine and cross-examine D.W.2 under Rule 17, but left intact the recall itself. The Court made clear that the Munsiff may put such questions as he considers proper to elicit the allegedly omitted fact, and may permit the petitioner-plaintiff to cross-examine D.W.2 on the answers given to the court's questions. The Court left undisturbed the Munsiff's expressed view regarding the effect of Sections 91 and 92 of the Evidence Act.

Holding and Implications

Holding: The revision petition was dismissed with modification. The impugned order is modified by setting aside the direction permitting the parties to examine and cross-examine D.W.2 under Rule 17; the recall of D.W.2 is upheld but the Munsiff alone may put questions to D.W.2 under Rule 17 and may allow the plaintiff to cross-examine answers to those court-put questions.

Implications:

Direct effect on the parties: The defendants remain permitted to have D.W.2 recalled, but the further examination and cross-examination must be conducted in conformity with Rule 17 — i.e., the court should put questions and may, at its discretion and with leave where appropriate, permit cross-examination on answers to those questions. The specific direction originally permitting the parties themselves to examine/cross-examine is set aside.
On the proper use of procedural provisions: The Court confirmed that a party may ask the court to act under Order 18 Rule 17, but emphasized that the rule vests the power to question a recalled witness in the court. If the court wishes to permit party-led further examination, that may be done under the court's inherent jurisdiction (Section 151 CPC) rather than by treating Rule 17 as authorising party-led recall-examination.
No broader new precedent was announced beyond applying and reconciling existing authorities; the Court relied on prior decisions (Madkubkai Amthsdal and Sultan Saleh bin Omer) to interpret the scope of Rule 17 and Section 151 CPC in the circumstances of the present case.

Disposition: With the above modification, the revision petition is dismissed. No costs were awarded.

Show full summary ...

Shankar Bhat v. Bheema Bhat & Another

Range Gowda, J.:— The question raised in this revision petition is whether a party to a suit has a right under Rule 17 of Order 18 of the Code of Civil Procedure (herenafter referred to as Rule 17), to recall a witness for the purpose of further examining, cross examining or re-examining, and that question arises in the following circumstances:

2. The petitioner and the first respondent are brothers and the second respondent is the minor son of the first respondent. On 24th August, 1966 the petitioner, the first respondent and their father Thimmanna Bhat divided their family properties under a registered partition deed (Exhibit P-2) of even date, and one of the terms in that partition deed was that the said Thimmanna Bhat was entitled to collect by way of ‘owelty’ 520 Kgs. of arecanut from the petitioner and the first respondent. Then Thimmanna Bhat bequeathed his right to collect ‘owelty’, after his death, from the first respondent in favour of the petitioner under a Will, Exhibit P-1.

3. After the death of the said Thimmanna Bhat the petitioner filed a suit against the respondents in O.S No. 133 of 1970 on the file of the Munsiff at Buntwal, South Kanara, for recovery of the value in cash of the ‘owlety’. The respondents resisted that suit and inter alia contended that the right given to Thimmanna Bhat to collect by way of ‘owelty’ 520 Kgs. of arecanut was not a heritable right and that he was entitled to the same only during his life time, and it is unnecessary to refer to his other contentions.

4. In view of the stand taken by the respondents, one of the issues framed in that suit was whether Thimmanna Bhat had a heritable right to collect ‘owelty’ so as to bequeath the same. The respondents in support of their case, examined one Shankar as DW 2 who is one of the attestors of the partition deed Ex. P-2. Long after his evidence was recorded the first respondent filed an application, I.A VI, under Section 151 C.P.C to recall DW 2 for the purpose of further examining him, what was stated in that application was that though DW 2 deposed in his evidence that Thimmanna Bhat was entitled to collect ‘owelty’ during his life time that fact does not find a Place in his deposition and that it was hence necessary to further examine him to elicit that fact for a just decision of the case.

5. The petitioner resisted that application and denied that DW 2 deposed to the said fact in the course of his evidence. He contended that the prayer made in I.A VI was misconceived and untenable.

6. The learned Munsiff declined to accept the version of the first respondent viz., that DW 2 deposed to the said fact, and in so declining this is what he stated in the impugned order:

“The notes of the examination in chief of DW 2 made by Sri K.K Bhat, during DW 2's evidence do not disclose that DW 2 stated in his examination in chief that the owelty was payable only during the life time of Thimmanna Bhat Under these circustances, I see no force in the contention that the material point on which DW 2 spoke during his evidence has been accidentally omitted by the court while recording his evidence.” despite taking that view, he allowed I.A VI on the ground that the said fact might not have been elicited from DW 2 due to inadvertance and he should be permitted to elicit the same. However, in allowing that application and in passing the impugned order which is extracted below, the view he took was that the right to recall a witness for the purpose of further examining, cross-examining or re-examining is traceable to Rule 17 and not to Section 151 C.P.C:—

“I.A No. 6 is allowed and the defendants are permitted to recall and examine DW 2 subject to the condition that they pay costs of Rs. 40 to the plaintiff by the next date of hearing. The plaintiff is allowed to further cross-examine DW 2.”

7. The said order is attacked by Sri Ganapathi Bhat learned counsel for the petitioner on two grounds. Firstly it was contended by him that under Rule 17 it is only the court which can suo motu recall a witness if it considers it necessary and that neither party to a suit has any such right or can move the court to do so. Secondly it was contended that when a witness is recalled under Rule 17, it is only the court that can put questions to him and neither party has any right to examine, cross-examine or re-examine the witness so recalled, and that in the instant case the learned Munsiff in passing the impugned order permitting DW 2 to be further examined and cross-examined by the parties has exercised jurisdiction not vested in him by law and as such the impugned order is clearly illegal and is liable to be set aside.

8. Rule 17 on the basis of which the said two contentions are advanced reads thus:

“17. The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.”

On a close reading of the said rule, it is difficult to accede to the contention that under that rule it is only the court that can suo moto recall a witness and not at the instance of a party. The words of the said rule do not suggest that there is any such restriction either on the power of the court or on the right of a party to recall a witness, and in my opinion, ether the court on its own motion or at the instance of the party can recall a witness under the said rule and there is no warrant for the proposition that it is only the court that can suo moto act under that rule. A similar view has been taken in Madkubkai Amthsdal v. Amthalal Nanala(1) the relevant portion reads thus:

“Mr. Banaji has argued that the right of the court to act under that rule is restricted to action of its own motion and that neither party has a right even to invite the court so to act. I do not see any such fetter on the powers of the party or on those of the Court…………I think that either the litigant can ask the court to act under O. 18, R. 17 or that court can do it of its own motion.”

Even in Sultan Saleh bin omer v. Vijayachand Sirina(2) the same view has been taken and the relevant portion therein reads thus:

“The right to act under this Rule is not restricted to the court on its own motion but may be exercised at the instance of a party.”

It must, therefore, be said that the first contention of Sri Ganapathi Bhat is devoid of force and must fail.

9. However, the said rule, in my opinion, makes it abundantly clear that the right to put questions to the witness recalled under Rule 17 is given only to the court and even cross-examination is not ordinarily permitted on the answers given to such questions, without the leave of the court. Under that rule therefore, a witness cannot be recalled at the instance of a party for the purpose of examining, cross examining or re-examining, and that rule is not intended to serve such purpose, and the purpose for which that rule can be invoked is the one that is indicated above. Therefore, the contention of Sri Ganapathi Bhat that an opportunity to a party to recall a witness for the purpose of examining, cross-examining or re-examining is not governed by Rule 17 is well founded. In this connection, I may also refer to the following observations in Sultan Saleh Bin Omer v. Vijayachand Sirmal, which accords with the above view:

“A close reading of this rule makes it obvious that the right under that Rule to put question at any stage or a suit or recall any witness for that purpose, is given to the Court. The court can put questions to the witness recalled, and no cross-examination is ordinarilly allowed upon the answers to the questions put by the Judge without leave…….. It cannot therefore be said that an opportunity to a party to recall any witness for the purpose of examining cross-examining or re-examining is governed by O. 18, R. 17 C.P.C ………..”

The learned Munsiff therefore, while acting under Rule 17, was clearly in error in passing the impugned order permitting the respondents and the petitioner respectively to examine and cross-examine D.W 2. If however, the circumstances warranted that the learned Munsiff did not think that he had such power to recall DW 2 for the purpose of further examining, the learned Munsiff could have granted that opportunity in exercise of his inherent jurisdiction under Sec. 151 C.P.C But, it is obvious that the learned Munsiff did not think that he had such power under that Section and could act thereunder, and, on an erroneous view proceeded to think that under Rule 17 he had that power. It is this confusion in his mind in understanding the true scope of the provisions of Sec. 151 C.P.C and Rule 17 that lead him to pass the impugned order. It was therefore submitted by Sri Ganapathi Bhat that under that rule the only order the learned Munsiff could have made was to recall DW 2 for the purpose of putting some questions by him with regard to the said fact, if he considered it necessary, and even on the facts of this case that was the only order that he could have made but not the impugned order permitting the respondents to examine D.W 2 further. His argument was that the purpose for which D.W 2 was sought to be recalled was to elicit the said fact viz., whether he deposed that Thimmanna Bhat was entitled to collect ‘owelty’ during his life time, and that therefore the proper course was for the learned Munsiff to put relevant questions to him and not to permit the respondents to further examine him, and at any rate under Rule 17 such an order was unwarranted. What he ultimately submitted was that if the learned Munsiff can be said to have exercise his discretion properly in recalling D.W 2 under Rule 17, he can put such questions to him as are relevant to elicit the said fact and the impugned order will have to be modified accordingly.

10. Since the learned Munsiff taking the view that due to inadvertance the respondents might not have elicited the said fact from D.W 2 and the same is material passed the order recalling him, I do not propose to interfere with the said discretionary order. However, the direction permitting D.W 2 to be examined and cross examine by the parties, cannot be upheld for the reasons already stated, and is hereby set aside. It is however open to the learned Munsiff to put such questions to D.W 2 as he considers proper and necessary to elicit the fact which according to him, was not elicited due to inadvertance; it is also open to him to permit the petitioner-plaintiff to cross examine D.W 2 upon the answers given to his questions. The impugned order shall stand modified accordingly. However, the view expressed by the learned Munsiff regarding the effect of Sections 91 and 92 of the Evidence Act remains undisturbed.

11. With the said modification, this revision petition is dismissed. No costs.

Shankar Bhat v. Bheema Bhat & Another

Case Summary — Revision Petition concerning Rule 17, Order 18 CPC and Section 151 CPC (Range Gowda, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's (Appellant's) Arguments — Sri Ganapathi Bhat

Respondents' (Respondent's) Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Shankar Bhat v. Bheema Bhat & Another

Comments

We use cookies to improve your experience