Case Note & Summary
The petitioners, who were the original defendants in Special Civil Suit No.74/2010 pending before the Second Joint Civil Judge, Satara, filed four writ petitions challenging the order dated 12th January 2011 passed below Exhibit 51. By that order, the trial court rejected their application under Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking to recall the plaintiff's witness for cross-examination and to lead additional evidence. The facts common to all petitions were taken from Writ Petition No.1870/2011. The respondent/plaintiff, M/s. Kacchi Properties, a partnership firm, had filed the suit against the petitioners. During the trial, the plaintiff's witness was examined in chief on 30th November 2010. The defendants were present and represented by counsel, but they did not cross-examine the witness on that day. The matter was adjourned to 1st December 2010, and then to 3rd December 2010, but the defendants still failed to cross-examine. On 3rd December 2010, the trial court closed the evidence of the plaintiff. The defendants then filed an application on 12th January 2011 seeking to recall the witness and to lead additional evidence, which was rejected by the trial court. The High Court, after hearing both sides, held that the trial court had exercised its discretion properly. The defendants had ample opportunity to cross-examine the witness but failed to do so. The application was filed belatedly and appeared to be a dilatory tactic. The High Court found no error in the impugned order and dismissed all four writ petitions, upholding the trial court's decision.
Headnote
A) Civil Procedure - Reopening of Evidence - Order 18 Rule 17 CPC - Discretion of Court - The trial court rejected the defendants' application to recall the plaintiff's witness for cross-examination and to lead additional evidence, holding that the application was filed belatedly and lacked sufficient cause. The High Court upheld the order, finding no error in the exercise of discretion, as the defendants had ample opportunity to cross-examine the witness earlier and the application appeared to be a dilatory tactic. (Paras 3-6)
B) Civil Procedure - Recall of Witness - Order 18 Rule 17 CPC - Sufficient Cause - The defendants sought to recall the plaintiff's witness on the ground that they were not given a proper opportunity to cross-examine, but the court noted that the witness was examined in chief on 30.11.2010 and the defendants failed to cross-examine despite opportunities. The application filed on 12.1.2011 was held to be without sufficient cause. (Paras 4-5)
Issue of Consideration
Whether the trial court erred in rejecting the defendants' application under Order 18 Rule 17 read with Section 151 CPC to recall the plaintiff's witness for cross-examination and to lead additional evidence.
Final Decision
All four writ petitions are dismissed. The impugned order dated 12th January 2011 passed by the Second Joint Civil Judge, Satara below Exh.51 in Special Civil Suit No.74/2010 is upheld. No order as to costs.
Law Points
- Order 18 Rule 17 CPC
- Section 151 CPC
- Reopening of evidence
- Discretion of trial court
- Sufficient cause
Case Details
2011 LawText (BOM) (08) 38
Writ Petition No. 1870 of 2011, Writ Petition No. 1874 of 2011, Writ Petition No. 1875 of 2011, Writ Petition No. 2232 of 2011
M.S. Karnik i/b. Amol A. Deshpande for the petitioners, Swapnil S. Mardhan with M.S. Kachi for respondent
Shri Mahendra Uttamrao Kadam, Shri Amit Uttamrao Kadam, Shri Amol Bhalerao Kadam, Shri Ganpatrao Shankarrao Kadam, Shri Uttam Dinkar Kadam, Shri Bhalerao Dinkar Kadam
M/s. Kacchi Properties, Satara, a Partnership Firm, through partner Shri Salim Gaffar Kacchi
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Nature of Litigation
Civil writ petitions challenging an interlocutory order rejecting an application to recall a witness and lead additional evidence in a civil suit.
Remedy Sought
The petitioners (defendants) sought to set aside the trial court's order dated 12.1.2011 rejecting their application under Order 18 Rule 17 CPC to recall the plaintiff's witness for cross-examination and to lead additional evidence.
Filing Reason
The petitioners claimed they were not given a proper opportunity to cross-examine the plaintiff's witness and sought to reopen evidence.
Previous Decisions
The trial court (Second Joint Civil Judge, Satara) rejected the application below Exh.51 on 12.1.2011.
Issues
Whether the trial court erred in rejecting the defendants' application under Order 18 Rule 17 read with Section 151 CPC to recall the plaintiff's witness for cross-examination and to lead additional evidence.
Submissions/Arguments
Petitioners argued that they were not given a proper opportunity to cross-examine the plaintiff's witness and that the application was filed in the interest of justice.
Respondent argued that the application was belated and a dilatory tactic, as the defendants had ample opportunity to cross-examine but failed to do so.
Ratio Decidendi
The trial court's discretion under Order 18 Rule 17 CPC to allow reopening of evidence should not be interfered with unless it is shown to be perverse or arbitrary. In this case, the defendants had sufficient opportunity to cross-examine the witness but failed to do so, and the application was filed belatedly without sufficient cause, hence the rejection was proper.
Judgment Excerpts
The facts involved in all these petitions are common, the issue involved is identical, so all the petitions can be disposed of by this common judgment.
On consideration of application tendered by the defendants, the trial court rejected the same by the impugned order.
The trial court has exercised its discretion in rejecting the application. I do not find any error in the order passed by the trial court.
Procedural History
The respondent/plaintiff filed Special Civil Suit No.74/2010 before the Second Joint Civil Judge, Satara. During trial, the plaintiff's witness was examined in chief on 30.11.2010. The defendants failed to cross-examine despite opportunities, and the plaintiff's evidence was closed on 3.12.2010. On 12.1.2011, the defendants filed an application under Order 18 Rule 17 CPC to recall the witness and lead additional evidence, which was rejected by the trial court. The defendants then filed four writ petitions before the Bombay High Court challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 18 Rule 17, Section 151
