Case Note & Summary
The petitioners, who were defendants in a civil suit, filed an application under Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) to recall the plaintiff's witnesses (P.W.1 and P.W.2) for cross-examination after they had already been examined and cross-examined. The trial court rejected the application on the ground that once witnesses are cross-examined, the court has no power to recall them for further examination. The petitioners challenged this order in the High Court. The High Court, relying on the Supreme Court decision in K.K. Velusamy vs. N. Palanisamy (2011) 11 SCC 275, held that the inherent power of the court under Section 151 CPC is not affected by the express power under Order 18 Rule 17 CPC. The court can recall witnesses for cross-examination if it is necessary for the just decision of the case. The High Court set aside the trial court's order and allowed the application, directing the trial court to recall the witnesses for cross-examination on payment of costs of Rs. 500 to the respondents.
Headnote
A) Civil Procedure - Recall of Witnesses - Order 18 Rule 17 CPC and Section 151 CPC - Inherent Power - The court held that the inherent power under Section 151 CPC is not affected by the express power under Order 18 Rule 17 CPC to recall witnesses. The court can exercise such power to recall witnesses for cross-examination if it is necessary for just decision of the case. (Paras 4-6)
B) Civil Procedure - Recall of Witnesses - Order 18 Rule 17 CPC - Scope - The power under Order 18 Rule 17 CPC is not limited to the court asking questions; it includes the power to permit parties to cross-examine witnesses when the court deems it necessary. (Paras 5-6)
Issue of Consideration
Whether the trial court has the power to recall witnesses for cross-examination after they have been examined, under Order 18 Rule 17 CPC read with Section 151 CPC.
Final Decision
The High Court allowed the writ petition, set aside the trial court order dated 8.11.2011, and directed the trial court to recall P.W.1 and P.W.2 for cross-examination on payment of costs of Rs. 500 to the respondents.
Law Points
- Order 18 Rule 17 CPC
- Section 151 CPC
- inherent power of court
- recall of witnesses
- cross-examination
- reopening of evidence
Case Details
2012 LawText (BOM) (07) 11
Writ Petition No. 9626 of 2011
Mr. V.R. Jain for petitioners, Mrs. M.D. Thube-Mhase for respondent No.1
Anand s/o Rangrao Ingle and Indrajit @ Indar s/o Rangrao Ingle
Govind s/o Rangrao Ingle, Tanyabai w/o Sugrav Barmade, Dattatraya s/o Madhav Manale, Shobha w/o Annasaheb More
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Nature of Litigation
Civil writ petition challenging trial court order rejecting application to recall witnesses for cross-examination.
Remedy Sought
Petitioners sought to recall P.W.1 and P.W.2 for cross-examination after filing of written statement.
Filing Reason
Trial court rejected application on ground that no power to recall witnesses after cross-examination.
Previous Decisions
Trial court rejected application below Exh.51 in Special Civil Suit No. 44 of 2010 on 8.11.2011.
Issues
Whether the trial court has power to recall witnesses for cross-examination under Order 18 Rule 17 CPC read with Section 151 CPC.
Submissions/Arguments
Petitioners argued that Supreme Court in K.K. Velusamy held that inherent power under Section 151 CPC can be exercised for reopening evidence or recalling witnesses.
Respondents argued that Order 18 Rule 17 CPC only allows court to recall witnesses for its own clarification, not for parties to cross-examine.
Ratio Decidendi
The inherent power of the court under Section 151 CPC is not affected by the express power under Order 18 Rule 17 CPC. The court can recall witnesses for cross-examination if necessary for just decision, even after they have been examined.
Judgment Excerpts
the Supreme Court in case of K.K. Velusamy vs. N. Palanisamy [2011 (11) SCC 275] had an occasion to deal with the provisions of O.18, R.17 and has taken a view that the inherent power of the court is not affected 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.
the powers u/s 151 of the C.P.C. can be exercised for reopening the evidence or for recalling the witnesses.
Procedural History
The petitioners filed an application below Exh.51 in Special Civil Suit No. 44 of 2010 before the learned C.J.S.D. Nilanga to recall P.W.1 and P.W.2 for cross-examination. The trial court rejected the application on 8.11.2011. The petitioners then filed the present writ petition challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 18 Rule 17, Section 151
