Mini v. C.C. Joy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 OP (FC).No. 1606 of 2011(R) --------------------------OP.366/2006 of FAMILY COURT,THRISSUR .................... PETITIONER ------------------------------ MINI, AGED 44 YEARS, D/O.DEVASSY, CHELLAKUDAM HOUSE, MALA PALLIPPURAM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.P.C.HARIDAS RESPONDENT: --------------- C.C.JOY, AGED 49 YEARS, S/O.CHEKKUNY, CHERADAYI HOUSE,KOTTANELLUR P.O., KADUPPASSERY VILLAGE, THRISSUR DISTRICT. ADV. SRI.P.CHANDRASEKHAR FOR R1 SRI.THOMAS M.JACOB FOR R1 THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** O.P.(F.C.) No. 1606 of 2011 R **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 26[th] day of May, 2011 ## **JUDGMENT** ## K.M. Joseph J., The petitioner approached this court with the following prayers: “(i) To call for all records leading up to Ext.P7 and set aside/ quash the same. (ii) To declare that Ext.P5 additional proof affidavit filed by the respondent is not liable to be accepted in evidence or acted upon. (iii) To direct the Family Court, Thrissur to reconsider Ext.P6 and allow the same.” 2. Briefly put the case of the petitioner is as follows. There were three cases pending between the parties before the Family Court, Thrissur. There was a direction issued by this Court to ## O.P.(F.C.) No. 1606 of 2011 **==> picture [14 x 10] intentionally omitted <==** dispose of all the three cases by 30.6.2011. All the three cases were tried jointly by taking O.P. No. 366 of 2006 as the leading case. From the side of the petitioner PWs1 to 7 were examined and Exts.A1 to 72 were marked. The respondent examined RWs1 to 69 and got marked Exts.B1 to 141 and Exts.X1 to 334. With the intention to protract the proceedings and to deny an opportunity to the petitioner to adduce evidence, the respondent filed I.A. No.6953 of 2010 seeking recall of witnesses RW1, RW3, RW4, RW6, RW7, RW15, RW17 and RW29. The Family Court allowed the request by Ext.P3 order recalling of RW1, RW3, RW4, RW6, RW7, RW15, RW17 and RW29. RW3, RW4, RW6, RW7, RW15, RW17 and RW29were recalled and examined. 3. The respondent who was examined as RW1 filed an additional proof affidavit containing 28 pages bringing out various new things/particulars with an intention to take away various admissions made by him in his earlier proof affidavit. Ext.P4 is the copy of the deposition of RW1 and the additional proof affidavit is Ext.P5. The learned counsel for the petitioner would contend that ## O.P.(F.C.) No. 1606 of 2011 **==> picture [14 x 10] intentionally omitted <==** though the respondent was recalled, he has no right to file an additional proof affidavit, that too without having any regard to Rule 4 of Order 18 CPC. Therefore the petitioner filed Ext.P6 I.A. praying to reject Ext.P5. It is the said I.A., which was dismissed by the impugned order, Ext.P7. 4. We heard learned counsel for the petitioner and the learned counsel for the respondent. 5. Learned counsel for the petitioner drew our attention to paragraphs 16 and 17 of the judgment in **Vadiraj Naggappa Vemekar v. Sharad Chand Prabhakar Gogate** (2009(4) SCC 410). It reads as follows: ## “XXXXXXX (16) In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the ## O.P.(F.C.) No. 1606 of 2011 **==> picture [14 x 10] intentionally omitted <==** evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after crossexamination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule ## O.P.(F.C.) No. 1606 of 2011 **==> picture [14 x 10] intentionally omitted <==** merely on the ground that his recall and reexamination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. (17) It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but an indicated herein above, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is aways within the discretion of the Trial Court to permit recall of such a witness for re-examinationin-chief with permission to the defendants to crossexamine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principle akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ## O.P.(F.C.) No. 1606 of 2011 **==> picture [14 x 10] intentionally omitted <==** ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.” 6. Learned counsel for the petitioner further drew our attention to the judgment in **Velusamy v. Palanisamy** (2011(2) KLT SN 19 (C.No.27) SC. Therein the court inter-alia held as follows: “Order 8 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under order 18 rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a ## O.P.(F.C.) No. 1606 of 2011 **==> picture [14 x 10] intentionally omitted <==** witness who has already been examined. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the Court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.” 7. On the same lines is the judgment relied on by the learned counsel for the petitioner in **Savithri v. Sreenivasan** (1987(2) KLT 388. 8. Per contra, the learned counsel for the respondent, supported the order. We notice that by Ext.P3 the Family Court has allowed the application to recall the witnesses, including RW1. ## O.P.(F.C.) No. 1606 of 2011 **==> picture [14 x 10] intentionally omitted <==** RW1 filed an additional proof affidavit by way of his further examination in chief. The Family Court has passed Ext.P7 order reasoning that under Order 18 Rule 4 CPC the examination in chief of a witness shall be by an affidavit and nothing prohibits the application of order 18 Rule 4 of CPC for further examination in chief. It was also stated that the respondent produced several documents and by filing additional proof affidavit he wanted to mark those additional documents also. The submission of the learned counsel for the petitioner was that the respondent's further examination in chief was to be done orally and not by way of written affidavit. It was held by the Family Court that on what basis that contention was put forward is not known and when additional proof affidavit is prepared and given in advance it would only help the petitioner to discuss with her counsel and to have effective further cross-examination and no prejudice will be caused to her. It was also stated that nothing prohibits Order 18 Rule 4 of CPC for further examination. 9. We notice that by Ext.P3 order RW1, RW3, RW4, RW6, ## O.P.(F.C.) No. 1606 of 2011 **==> picture [14 x 10] intentionally omitted <==** RW7, RW15, RW17 and RW29 were allowed to be recalled. The order has not been challenged. Of course the learned counsel for the petitioner would contend what is the manner in which the recalled witnesses are permitted to give evidence is what is questioned. He reminds us of the outlines of the power of the Court to recall the witnesses and the limits within which the witnesses can give evidence as recalled witnesses. According to him, the witness in question, namely the respondent has by way of additional proof affidavit crossed the said limits. 10. Having regard to the dispensation of things as contemplated in Order 18 Rule 4, giving of additional proof affidavit cannot be questioned. Undoubtedly the other side would have the right to cross - examine the witnesses. The petitioner seeks to challenge the correctness of certain aspects which came out in the evidence. We have already referred to the law on the point as declared by the Apex Court as regards the limits in this matter. We are of the view that we need not interfere with the order, as such. But, at the same time, we make it clear that if RW1 ## O.P.(F.C.) No. 1606 of 2011 **==> picture [20 x 10] intentionally omitted <==** has by way of additional proof affidavit gone beyond the limits of the law laid down by the Apex Court, certainly the Court will bear the law in mind when it appreciates the evidence. This is apart from the right of the petitioner to cross examine the witness on the aspects if she is so advised. The O.P.(F.C) is disposed of as above. 11. Learned counsel for the petitioner would submit that time limit has been fixed as 30.6.2011 by another Bench and it may be extended. We leave it open to the petitioner to move the appropriate Bench. **K.M.JOSEPH, (JUDGE)** **M. L. JOSEPH FRANCIS, (JUDGE)** dl/