Judgment:
Oral Order:
1. These three writ petitions under Article 227 of the Constitution of India have been preferred by the petitioner who has filed three separate civil suits for eviction of the respondents. In all the suits, the trial Court has rejected the petitioner/plaintiff's application under Order 18 Rule 17 of the Code of Civil Procedure, 1908 (for short 'the CPC'), which was preferred by him seeking permission to prove the document by exhibiting the same.
2. The suits have been filed sometimes in the month of December, 2005. The eviction has been sought on the ground of arrears of rent; occupation of additional area belonging to the landlord which was not let out to the defendants and raising construction thereon as also on the ground of denial of landlord's title. Plaintiff's evidence was closed sometimes in April, 2011 and thereafter, he moved an application on 14.11.2011 under Order 7 Rule 14 read with Order 13 Rule 2 of the CPC seeking permission to produce some photographs of the suit premises for confronting the defendants at the time of their cross-examination. This application was allowed by the trial Court on 10.05.2012 and, thus, the photographs have been taken on record.
3. The subject application under Order 18 Rule 17 read with Section 151 of the CPC were preferred on 26.09.2013 stating that the photographs which have been taken on record were photographed by the plaintiff's attorney holder on 20.05.2005, however, they have not been exhibited and proved, therefore, the plaintiff may be permitted to mark the photographs as exhibits and prove the same so as to make it admissible in evidence.
4. The defendants contested the application on submission that the photographs are manipulated by misuse of computer and electronic gadgets and they are not supported with any negative or the bills submitted by the photographer, therefore, they are not admissible in evidence and, as such, it cannot be allowed to be exhibited. It has also been stated that the photographs were allegedly taken in the year 2005 yet they were not produced at the time of plaintiff's examination and, thus, the application is belated and afterthought.
5. The trial Court has rejected the application by observing that under Order 18 Rule 17 it is the discretion of the Court to recall a witness to put questions to him and the said power is to be exercised in rare and exceptional cases, which has not occasioned in the case.
6. Learned counsel appearing for the petitioner would submit that the photographs were taken on record, as the same were produced for confronting the defendants during their cross-examination, however, when the defendants did not enter the witness box, photographs remained un- exhibited, therefore, it became necessary for the plaintiff to move the subject application. Learned counsel would submit that the application is neither belated nor mala fide, but exhibition of document is necessary for proper adjudication of the suit. Learned counsel would rely upon the decision of this Court rendered in Gokul Vs. Rajwantin Bai and others (2005 (1) C.G.L.J. 215) and the decision of Rajasthan High Court rendered in Jodhpur Gums and Chemicals Pvt. Ltd. Vs. Punjab National Bank and others (AIR 1999 Rajasthan 38).
7. Learned counsel appearing for the respondents would submit that the provisions contained under Order 18 Rule 17 of the CPC enables the Court to recall a witness and put questions and the same cannot be invoked at the instance of a party. Learned counsel would rely upon the decision of the High Court of Punjab and Haryana rendered in Smt. Surinder Kaur Vs. Karanbir Singh and another (AIR 2004 Punjab and Haryana 377) and the decision of High Court of Allahabad rendered in Altaf Hussain Vs. Nasreen Zahra (AIR 1978 Allahabad 515).
8. Provisions contained under Order 18 Rule 17 of the CPC reads as under:-
âR. 17. Court may recall and examine witness.--The Court may at any stage of a suit recall any witness who has been AIR 1978 Allahabad 515examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.â
9. A bare reading of the provision would clearly indicate that power to recall a witness has been conferred on the Court for putting such questions to him as it thinks fit, but it nowhere entitles a party to recall a witness for further crossexamination or for making some additional statements or for exhibiting and proving the documents.
10. In Balkrishna Shivappa Shetty V. Mahesh Nenshi Bhakta and others (AIR 2003 Bombay 293), the High Court of Bombay, in para 11, has held thus:-
â11. As already observed above, since the provisions of law contained in Order 18, Rule 17 of the Code though nowhere empowers the Court to allow a party to cross-examine a witness by recalling such witness, and the impugned order having been passed in exercise of the provisions contained in Order 18, Rule 17, the same is unsustainable and is liable to be set aside. The contention that such powers can be exercised under Section 151 of the Code may be true in a given case provided the materials on record justify such order. As already observed above, in this case, mere failure on the part of the respondent Nos. 1 to 3 to take appropriate steps at appropriate time in relation to Exhibit-5, that will not ensure to their benefit to seek the assistance of the Court for exercise of its inherent powers under Section 151 to enable the party to fill the lacuna in evidence. Besides, it should not be forgotten that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code, as has been ruled by the Apex Court in Padam Sen v. State of Uttar Pradesh, reported in AIR 1961 SC 218. The impugned order therefore cannot be justified under Section 151 as there is no material on record to warrant exercise of powers under Section 151 to allow the respondent Nos. 1 to 3 to recall the defendant No.1 for the purpose of further cross-examination.â
11. In Smt. Surinder Kaur (supra), it has been held that the provisions contained under Order 18 Rule 17 of the CPC should not be invoked and allow any party to fill up the lacuna by recalling a witness.
12. It has been argued by the learned counsel for the petitioner that even if such power may not expressly been read in the provisions contained under Order 18 Rule 17, the Court can exercise its inherent power under Section 151, therefore, to do complete justice in the matter the trial Court should have allowed the application.
13. It is not a case where the CPC has not made any provision for recalling the witness. Once a provision has made in form of Rule 17 Order 18 of the CPC restricting the same to be invoked by the Court for putting some questions to the witness, but not allowing any party to the litigation to recall a witness, in such a situation provision contained under Section 151 of the CPC cannot be applied for recalling a witness, which is otherwise not made permissible in CPC.
14. Even otherwise a reading of the subject application would clearly indicate that no prayer for recall of the witness was made. The only prayer made in the application was for permitting the plaintiff to prove the documents. Rule 17 Order 18 of the CPC nowhere provides for such permission for proving the document. It appears, the plaintiff being aware of the limitation that a witness cannot be recalled at the instance of a party to the suit, the application has been couched in such a language where he has sought permission to prove the document which once allowed would automatically have the effect of recalling a witness.
15. Applying its earlier decisions in the matters of Surya Dev Rai v. Ram Chander Rai ((2003) 6 SCC 675) and Shalini Shyam Shetty v. Rajendra Shankar Patil ((2010) 8 SCC 329), the Supreme Court in Sameer Suresh Gupta through PA Holder v. Rahul Kumar Agarwal ((2013) 9 SCC 374) has held that supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. It has also been held that supervisory jurisdiction or certiorari jurisdiction is not available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion.
16. Having considered the limited scope of interference under Article 227 of the Constitution of India and for the reason that the trial Court has not committed any such illegality or irregularity warranting interference of this Court, all the writ petitions are liable to be and are hereby dismissed, leaving the parties to bear their own costs.