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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1787 OF 2013
(Arising out of S.L.P. (C) No.35268 of 2011)
M/s Bagai Construction Thr.
Its Proprietor Mr. Lalit Bagai .... Appellant(s)
Versus
M/s Gupta Building Material Store ....
Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the order dated
23.08.2011 passed by the High Court of Delhi at New Delhi
in C.M.(M) No. 707 of 2010 (Civil Revision No. 707 of 2010)
whereby the learned single Judge of the High Court allowed
the revision filed by the respondent herein and set aside the
order dated 25.02.2010 of the Additional District Judge,
Delhi.
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3) Brief facts:
(a) The appellant is a proprietorship concern dealing in
interior decoration and construction work and Mr. Lalit Bagai
is the sole proprietor of the said concern. The respondent is
a partnership firm registered with the Registrar of Firms vide
Registration No. 1237/93 dated 07.06.1993 and is engaged
in the business of sale and supply of building materials.
(b) Admittedly, the appellant and respondent have often
transacted with each other. According to the respondent,
the appellant made various purchases on credit from them
for which payments were made in parts and the same were
credited to his account maintained by them. It is alleged by
the respondent that after adjusting all the payments being
made by the appellant, an amount of Rs.4,35,250.18 is due
against his firm. Despite repeated demands, requests, and
reminders, the appellant has not cleared the outstanding
amount. Therefore, the respondent sent legal notice dated
11.04.2005 to the appellant through his counsel calling upon
him to pay the outstanding dues along with interest @ 2%
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per month. Despite notice, the appellant did not pay any
amount, therefore, the respondent instituted a suit against
him for recovery of sum of Rs.4,35,250.18 along with
interest accrued thereon. After the arguments were
concluded in the suit on 27.10.2009, the matter was
adjourned for judgment on 03.11.2009.
(c) In the meantime, on 31.10.2009 the respondent moved
two applications, one under Order VII Rule 14 read with
Section 151 of the Code of Civil Procedure, 1908 (in short
“CPC”) for placing on record certain documents and the
other under Order XVIII Rule 17 read with Section 151 of CPC
for seeking permission to recall PW-1 for proving certain
documents by leading his additional evidence. By order
dated 25.02.2010, the Additional District Judge, Delhi
dismissed both the applications.
(d) Dissatisfied with the said order, the respondent filed
revision petition being CM (M) No. 707 of 2010 (Civil
Revision No. 707 of 2010) before the High Court of Delhi.
The learned single Judge of the High Court by impugned
order dated 23.08.2011 allowed the revision and set aside
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the order dated 25.02.2010 passed by the Additional District
Judge, Delhi.
(e) Aggrieved by the said order, the appellant has
preferred this appeal by way of special leave.
4) Heard Mr. Siddharth Yadav, learned counsel for the
appellant and Mr. Jinendra Jain, learned counsel for the
respondent.
5) The only point for consideration in this appeal is
whether the plaintiff has made out a case for allowing the
applications one filed under Order XVIII Rule 17 read with
Section 151 CPC and another application under Order VII
Rule 14 read with Section 151 CPC?
The trial Court
dismissed both the applications, however, the High Court by
the impugned order set aside the order of the trial Court and
directed taking on record the bills which are proposed to be
filed by the plaintiff, granted permission to recall PW-1 to
prove those bills. The High Court passed such order in
favour of the plaintiff subject to payment of cost of
Rs.5,000/-
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6) In order to find out the acceptability of the impugned
order or not, it is useful to refer the relevant provisions of
the CPC which read thus:
“Order VII Rule 14
14. Production of document on which plaintiff sues
or relies.-
(1) Where a plaintiff sues upon a document or
relies upon document in his possession or power in support
of his claim, he shall enter such documents in a list, and
shall produce it in Court when the plaint is presented by
him and shall, at the same time deliver the document and
a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or
power of the plaintiff, he shall, wherever possible, state in
whose possession or power it is.
(3) A document which ought to be produced in Court by
the plaintiff when the plaint is presented, or to be entered
in the list to be added or annexed to the plaint but is not
produced or entered accordingly, shall not, without the
leave of the Court, be received in evidence on his behalf at
the hearing of the suit.
(4) Nothing in this rule shall apply to document
produced for the cross examination of the plaintiff’s
witnesses, or, handed over to a witness merely to refresh
his memory.”
Order XVIII Rule 17
“17. Court may recall and examine witness.-
The
Court may at any stage of a suit recall any witness who has
been examined and may (subject to the law of evidence for
the time being in force) put such questions to him as the
Court thinks fit.”
Section 151 of CPC
“151. Saving of inherent powers of Court.-
Nothing in
this Code shall be deemed to limit or otherwise affect the
inherent power of the Court to make such orders as may
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be necessary for the ends of justice or to prevent abuse of
the process of the Court.”
7) Before going into the merits of claim of both the
parties, let us recapitulate the views expressed by this Court
through recent decisions.
8) In Vadiraj Naggappa Vernekar (dead) through
LRs. vs. Sharadchandra Prabhakar Gogate, (2009) 4
SCC 410, this Court had an occasion to consider similar
claim, particularly, application filed under Order XVIII Rule 17
and held as under:
“25. 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 evidence
of a witness who has already been examined.
28. 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 merely on the ground that his
recall and re-examination would not cause any prejudice to
the parties. That is not the scheme or intention of Order 18
Rule 17 CPC.
29. 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 as indicated
hereinabove, 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.
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31. Some of the principles 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 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.”
9) If we apply the principles enunciated in the above case
and the limitation as explained with regard to the application
under Order XVIII Rule 17, the applications filed by the
plaintiff have to be rejected. However, learned counsel for
the respondent by placing heavy reliance on a subsequent
decision, namely, K.K. Velusamy vs. N. Palanisamy,
(2011) 11 SCC 275, submitted that with the aid of Section
151 CPC, the plaintiff may be given an opportunity to put
additional evidence and to recall PW-1 to prove those
documents and if need arises other side may be
compensated. According to him, since the High Court has
adopted the said course, there is no need to interfere with
the same.
10) In Velusamy (supra) even after considering the
principles laid down in Vadiraj Naggappa Vernekar
(supra) and taking note of Section 151 CPC, this Court
concluded that in the interests of justice and to prevent
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abuse of the process of the Court, the trial Court is free to
consider whether it was necessary to reopen the evidence
and if so, in what manner and to what extent. Further, it is
observed that the evidence should be permitted in exercise
of its power under Section 151 of the Code. The following
principles laid down in that case are relevant:
“19. We may add a word of caution.
The power under
Section 151 or Order 18 Rule 17 of the Code is not
intended to be used routinely, merely for the asking. If so
used, it will defeat the very purpose of various
amendments to the Code to expedite trials. But where the
application is found to be bona fide and where the
additional evidence, oral or documentary, will assist the
court to clarify the evidence on the issues and will assist in
rendering justice, and the court is satisfied that nonproduction earlier was for valid and sufficient reasons, the
court may exercise its discretion to recall the witnesses or
permit the fresh evidence. But if it does so, it should
ensure that the process does not become a protracting
tactic. The court should firstly award appropriate costs to
the other party to compensate for the delay. Secondly, the
court should take up and complete the case within a fixed
time schedule so that the delay is avoided. Thirdly, if the
application is found to be mischievous, or frivolous, or to
cover up negligence or lacunae, it should be rejected with
heavy costs.
With these principles, let us consider the merits of the case
in hand.
11) The perusal of the materials placed by the plaintiff
which are intended to be marked as bills have already been
mentioned by the plaintiff in its statement of account but the
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original bills have not been placed on record by the plaintiff
till the date of filing of such application. It is further seen
that during the entire trial, those documents have remained
in exclusive possession of the plaintiff but for the reasons
known to it, still the plaintiff has not placed these bills on
record. In such circumstance, as rightly observed by the
trial Court at this belated stage and that too after the
conclusion of the evidence and final arguments and after
reserving the matter for pronouncement of judgment, we are
of the view that the plaintiff cannot be permitted to file such
applications to fill the lacunae in its pleadings and evidence
led by him. As rightly observed by the trial Court, there is no
acceptable reason or cause which has been shown by the
plaintiff as to why these documents were not placed on
record by the plaintiff during the entire trial. Unfortunately,
the High Court taking note of the words “at any stage”
occurring in Order XVIII Rule 17 casually set aside the order
of the trial Court, allowed those applications and permitted
the plaintiff to place on record certain bills and also granted
permission to recall PW-1 to prove those bills. Though power
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under Section 151 can be exercised if ends of justice so
warrant and to prevent abuse of process of the court and
Court can exercise its discretion to permit reopening of
evidence or recalling of witness for further
examination/cross-examination after evidence led by the
parties, in the light of the information as shown in the order
of the trial Court, namely, those documents were very well
available throughout the trial, we are of the view that even
by exercise of Section 151 of CPC, the plaintiff cannot be
permitted.
12) After change of various provisions by way of
amendment in the CPC, it is desirable that the recording of
evidence should be continuous and followed by arguments
and decision thereon within a reasonable time. This Court
has repeatedly held that courts should constantly endeavour
to follow such a time schedule. If the same is not followed,
the purpose of amending several provisions in the Code
would get defeated. In fact, applications for adjournments,
reopening and recalling are interim measures, could be as
far as possible avoided and only in compelling and
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acceptable reasons, those applications are to be considered.
We are satisfied that the plaintiff has filed those two
applications before the trial Court in order to overcome the
lacunae in the plaint, pleadings and evidence.
It is not the
case of the plaintiff that it was not given adequate
opportunity. In fact, the materials placed show that the
plaintiff has filed both the applications after more than
sufficient opportunity had been granted to it to prove its
case. During the entire trial, those documents have
remained in exclusive possession of the plaintiff, still plaintiff
has not placed those bills on record. It further shows that
final arguments were heard on number of times and
judgment was reserved and only thereafter, in order to
improve its case, the plaintiff came forward with such an
application to avoid the final judgment against it. Such
course is not permissible even with the aid of Section 151
CPC.
13) Under these circumstances, the impugned order of the
High Court dated 23.08.2011 in C.M. No. 707 of 2010 (Civil
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Revision No. 707 of 2010) is set aside and the order dated
25.02.2010 of the trial Court is restored.
14) The appeal is allowed with no order as to costs.
...…………………………………J.
(P. SATHASIVAM)
...…………………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
FEBRUARY 22, 2013.
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