Case Note & Summary
The case arises from an election petition filed by Ravindra Ramji Mundhe (petitioner) challenging the election of Avadhoot Anil Tatkare (respondent No.1) and others. During the trial, the petitioner examined himself as a witness (PW-1) and was cross-examined by the respondents. After the petitioner's evidence was closed and the respondents had begun leading their evidence, the petitioner filed an application under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking to recall himself for further cross-examination. The respondents opposed the application, arguing that there was no provision for recall after discharge and that the application was an abuse of process. The High Court of Bombay, presided over by Justice R.D. Dhanuka, dismissed the application. The court held that Order XVIII Rule 17 CPC only permits the court to recall a witness for clarification or to fill a lacuna, not to allow a party to re-open its case after closure. The court noted that the petitioner had ample opportunity to cross-examine himself and that the application was filed belatedly, after the respondents had started their evidence. The court also rejected the reliance on inherent powers under Section 151 CPC, stating that such powers cannot be used to override specific provisions or to grant a remedy not available under law. The court found the application to be an abuse of process and dismissed it with costs of Rs. 25,000.
Headnote
A) Election Law - Recall of Witness - Order XVIII Rule 17 CPC - Section 87 Representation of the People Act, 1951 - The court held that once a witness has been examined-in-chief, cross-examined, and discharged, there is no provision under the CPC or the Act to recall the witness for further cross-examination, especially when the application is made after the petitioner's evidence is closed and the respondent's evidence is underway. The court rejected the argument that inherent powers under Section 151 CPC could be invoked to allow such recall, as it would cause prejudice and delay. (Paras 1-10) B) Civil Procedure - Inherent Powers - Section 151 CPC - The court held that inherent powers cannot be exercised to circumvent specific provisions of the CPC or to allow a remedy not provided by law. The application for recall was found to be an abuse of process, aimed at filling gaps in the petitioner's case. (Paras 11-15)
Issue of Consideration
Whether the High Court has the power to recall a witness for further cross-examination after the witness has been discharged and cross-examination concluded, in an election petition governed by the Representation of the People Act, 1951 and the Code of Civil Procedure, 1908.
Final Decision
The court dismissed the application with costs of Rs. 25,000, holding that there is no power to recall a witness for further cross-examination after discharge and closure of evidence, and that the application was an abuse of process.
Law Points
- Election petition
- recall of witness
- cross-examination
- Order XVIII Rule 17 CPC
- Section 87 Representation of the People Act
- 1951
- inherent power
- abuse of process
