Case Note & Summary
The Karnataka High Court allowed the writ petitions filed by the Karnataka State Financial Corporation (KSFC) and set aside the trial court's order dated 2.12.2013 in O.S. No.56/2010. The dispute arose out of a suit for specific performance of contract filed by the plaintiff (M/s Siyaram Arcade and its partners) against the defendants, including KSFC. During the trial, the plaintiff examined its witnesses, but after their examination-in-chief, the plaintiff failed to produce them for cross-examination by the defendant (KSFC). The defendant filed an application under Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) to recall the witnesses for cross-examination. The trial court rejected the application on the ground that the defendant had already cross-examined the witnesses. However, the High Court found that the trial court's finding was factually incorrect as the defendant had not been given an opportunity to cross-examine the witnesses. The High Court held that the right to cross-examine is a valuable right and cannot be denied. The court further observed that the rejection of the application would lead to an abuse of process of law. Consequently, the High Court quashed the trial court's order and allowed the application for recall of witnesses, directing the trial court to permit the defendant to cross-examine the plaintiff's witnesses.
Headnote
A) Civil Procedure - Recall of Witnesses - Order 18 Rule 17 CPC - Right to Cross-Examine - The trial court rejected the application of the defendant (KSFC) to recall plaintiff's witnesses for cross-examination, holding that the defendant had already cross-examined the witnesses. However, the High Court found that the defendant was not given an opportunity to cross-examine the witnesses as the plaintiff failed to produce them for cross-examination after their examination-in-chief. The High Court held that the trial court's order was erroneous and that the defendant's right to cross-examine could not be denied. (Paras 5-10) B) Civil Procedure - Inherent Powers - Section 151 CPC - Abuse of Process - The High Court observed that the trial court's rejection of the application would result in an abuse of process of law, as the defendant would be deprived of its right to cross-examine the witnesses. The court held that the inherent powers under Section 151 CPC can be invoked to prevent such abuse. (Paras 8-10) C) Civil Procedure - Recall of Witnesses - Order 18 Rule 17 CPC - Conditions for Recall - The High Court clarified that the power to recall witnesses under Order 18 Rule 17 CPC is discretionary and can be exercised when the court is satisfied that it is necessary for the just decision of the case. In the present case, since the defendant was not given an opportunity to cross-examine, the recall was necessary. (Paras 7-10)
Issue of Consideration
Whether the trial court was justified in rejecting the application filed by the defendant (KSFC) under Order 18 Rule 17 read with Section 151 CPC to recall the plaintiff's witnesses for cross-examination, when the defendant was not given an opportunity to cross-examine them earlier due to the plaintiff's failure to produce the witnesses for cross-examination.
Final Decision
The High Court allowed the writ petitions, quashed the order dated 2.12.2013 passed by the II Additional Senior Civil Judge, Mangalore on I.A.Nos.11 & 12 in O.S.No.56/2010, and allowed the application for recall of witnesses. The trial court was directed to permit the defendant to cross-examine the plaintiff's witnesses.
Law Points
- Recall of witnesses
- cross-examination
- right to fair trial
- Order 18 Rule 17 CPC
- inherent powers of court
- abuse of process of law
