Santosh Kumar Berry vs Nirmala Devi – Civil Revision No. 5639 of 2012

CR No. 5639 of 2012
Date of decision: September 25, 2012
Santosh Kumar Berry
……. Petitioner
Nirmala Devi and others
…….. Respondents

Present:- Mr. Yogesh Goel, Advocate for the petitioner.

1. Whether reporters of local papers may be allowed to see the judgment ? Yes
2. To be referred to the reporters or not? Yes
3. Whether the judgment should be reported in the digest? Yes

K. Kannan, J (oral).

1. The petition is at the instance of the party who has moved an application for reopening the case for tendering witnesses for examination but the Court had declined the prayer on the ground that the order closing the evidence was already passed and there was no justification for reopening the case.

2. In a judgment of the Supreme Court in Rajeshwari Vs. Puran Indoria (2005) 7 SCC 60 the Supreme Court pointed out to the consequences of the amendment made in Section 115 CPC that curtailed powers of the High Court substantially to interfere with any interim orders passed. It has only resulted in a large deluge of cases before to come to the High Court invoking the powers, under Article 227 of the Constitution. There is a duty CR No. 5639 of 2012 enjoined on a trial Judge or a Tribunal to see that the discretion vested that allows for witnesses to be examined during the conduct of trial is employed in such a way that the parties have the fullest opportunity to tender all the witnesses that they want to place before the Court. It is not uncommon that there is a deliberate delay or lapse on the part of parties or witnesses to avail the opportunity given by the Court that upsets its schedule and the Courts close the side if witnesses are not brought on the days assigned for the purpose. The closure of the side for examination of witnesses on applications when the parties seek for reopening the case for tendering the evidence casts a needless burden on this Court and it is imperative that the trial Judge realizes that only some modicum of tact is necessary to set the progress of the trial on an even keel. Imposition of costs and if necessary revising the schedule of evidence are not anathema to the scheme of CPC. Mulcting a party with costs is a manner of bringing discipline to the conduct of parties and an expression of a judicial reprimand for the unworthy conduct of a litigant. It has to be exercised judiciously so that a party knows that if he does not comply with the direction to produce witness in Court there could be a stiff penalty for the same. There are so many other methods which the Court can adopt to secure the attendance of witnesses in Court at the appropriate time. It should be possible to insist on list of witnesses earlier and ensure that summons through Court or dasti summons are taken to secure the attendance of witnesses in Court at the appropriate time. It is also possible to adjourn the case to lean working days and ensure that the witnesses CR No. 5639 of 2012 come on that day. It is a daily experience for many a litigant that come to Court is turned away without being examined because the Court does not find time to examine all the witnesses that are brought to Court. In such a situation it will be unfair that if a party does not bring witness on a particular hearing he must lose the
opportunity all together. If the Court is otherwise engaged it ought not to make a big issue of the absence of a party and close the evidence once and for all. The stiff approach that the Court employs in closing the evidence must be tempered with tactful judicial approaches to elicit the best of cooperation from the litigant and his lawyer and secure his presence at the appropriate time.

3. In this case, the Court did not employ appropriate resourceful approach. Suffice it to say to point out that if there ever be an occasion when the side is closed and a petition is filed for reopening the same, the Court shall not normally dismiss the petition but shall consider giving an opportunity subject to appropriate terms as to costs, except in extreme circumstances of manifest
contumacious conduct or there is seen an attempt to harass the other side by deliberate delays. In Vadiraj Naggappa Vernekar Vs. Sharadchandra Prabhakar Gogate, 2009 (4) SCC 410, while
examining Order 18 Rule 17 CPC the Supreme Court held that the provision could be invoked only in a situation 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 provisions were not to be used to fill up omissions in the evidence of a witness who has already been examined. This provision was again examined in a CR No. 5639 of 2012 4 different situation, akin to the present situation in K. K. Velusamy Vs. N Palanisamy AIR (2011) SC (Civil) 1000. In the case before Supreme Court the application was moved after the conclusion of examination of witnesses and after the partial arguments were over. The Court held:
(i) Court should award appropriate costs to the other party to compensate for the delay.
(ii) If the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.
(iii) If additional evidence was non genuine or relevant, exemplary costs be awarded apart from ordering prosecution if it involves fabrication of evidence.

Noticing that there was no provision for re-opening or recalling of witness, the Court held that: “However in the absence of any such power, the inherent power under Section 151 C.P.C. can be
invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination. This inherent power of the Court is not affected by the express power conferred upon the Court under Order 18 Rule 17 of the Code to recall any witness to enable the Court to put such question to elicit any clarifications. The Court ought to have, in this case re-opened the case and allowed for examination of witnesses.

4. The order passed by the Court below is set aside subject to condition that the petitioner pays `5,000/- as costs to the respondent within a period of one week from the date of receipt CR No. 5639 of 2012 of copy of the order. Having regard to the nature of order that is passed I dispense with notice and allow the civil revision on the above terms. If the costs are not paid as directed, the order passed already by the Court shall stand confirmed.


September 25, 2012