2025 (2) TMI 1181 - HC - Indian Laws

Review Petition under Section 114 read with Order XLVII Rule 1 and Section 151 of the Civil Procedure Code (CPC) - reopening of evidence and recalling witnesses for further cross-examination based on electronic evidence - Validity of impugned order passed - HELD THAT - It is apparent that witness Abhayraj has already been cross-examined at length on the issue of demarcation and diversion of the disputed land by the petitioner who is a practicing Advocate and by his counsel and same is specifically observed by the trial Court in its order. Plaintiff has not produced any electronic evidence or any other evidence which might show that further cross-examination of the witness on the point of demarcation about which lengthy cross-examination has already taken place is further necessary. Therefore this Court dismissed the application. The facts of K.K. Velusamy (supra) are not applicable in this case as in that case compact disc in form of electronic evidence was produced before the trial Court in which witnesses who were sought to be recalled for further cross-examination were alleged to have admitted the fact that the money was lent for security purposes and no agreement to sale was executed whereas case in hand no such material is available. It is settled position of law that provision of Order XVIII Rule 17 of CPC are not intended to enable parties to recall any witness for further cross-examination on which lengthy cross-examination has already been made. In fact it is a provision enabling the Court to clarify any issue or doubt by recalling any witness. The power under Section 151 or Order XVIII Rule 17 of CPC is not intended to be used routinely merely for asking because if so used it will defeat the very purpose of the various amendments to the Code to expedite trials. Therefore this Court does not find any error apparent in the impugned order passed by this Court in Miscellaneous Petition No.7264/2024. Consequently this Review Petition being devoid of merits is hereby dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the Review Petition under Section 114 read with Order XLVII Rule 1 and Section 151 of the Civil Procedure Code (CPC) is maintainable to recall or review the order dated 07.01.2025 dismissing the petition for recalling a witness for further cross-examination.

- Whether the judgment in K.K. Velusamy v. N. Palaanisamy (2011) is applicable to the facts of the present case, particularly concerning the reopening of evidence and recalling witnesses for further cross-examination based on electronic evidence.

- The scope and ambit of Order XVIII Rule 17 CPC regarding the power of the Court to recall and examine witnesses at any stage of the suit.

- Whether the trial Court and the High Court erred in dismissing the application to recall the witness for further cross-examination on the issue of demarcation and diversion of the disputed property.

- The extent to which the Court's discretion under Order XVIII Rule 17 and Section 151 CPC should be exercised, including considerations of delay, bona fide application, and the presence or absence of new evidence.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Maintainability and scope of Review Petition under Section 114 r/w Order XLVII Rule 1 and Section 151 CPC

The Court examined the statutory provisions governing review petitions, emphasizing that review is permissible only when there is an "error apparent on the face of the record." The impugned order dated 07.01.2025 was scrutinized to determine if such an error existed. The Court noted that the earlier order dismissed the petition seeking to recall a witness after extensive cross-examination had already been conducted.

The Court reiterated that the power of review is narrowly circumscribed and cannot be used to re-agitate settled issues or to fill gaps in evidence without sufficient justification. The Court found no apparent error in the impugned order and held that the Review Petition was not maintainable on the grounds advanced.

Issue 2: Applicability of K.K. Velusamy v. N. Palaanisamy (2011) judgment

The petitioner relied heavily on the Supreme Court's decision in K.K. Velusamy, where the apex Court allowed reopening of evidence and recalling witnesses for further cross-examination based on newly discovered electronic evidence (a compact disc containing a recorded conversation). The Court analyzed the facts of that case, noting that the application was supported by an affidavit and the electronic record was relevant and admissible under Section 3 of the Indian Evidence Act, 1872.

The Court contrasted this with the present case, where no new electronic or documentary evidence was produced to justify recalling the witness. The witness sought to be recalled had already undergone lengthy cross-examination specifically on the issue of demarcation and diversion of the disputed property. The Court held that the facts of K.K. Velusamy were clearly distinguishable and therefore not applicable.

The Court further cited the cautionary principles laid down in K.K. Velusamy, emphasizing that the power to recall witnesses under Section 151 or Order XVIII Rule 17 CPC is discretionary and should not be exercised routinely or to cause delay. The Court highlighted the need to award costs and fix time schedules when such powers are exercised to prevent abuse.

Issue 3: Scope and ambit of Order XVIII Rule 17 CPC

The Court examined the language and purpose of Order XVIII Rule 17 CPC, which empowers the Court to recall any witness at any stage of the suit to clarify issues or doubts. The Court noted that this provision is not intended to allow parties to fill omissions or to recall witnesses for further cross-examination on points already exhaustively examined.

The Court observed that the trial Court had rightly held that the witness had already been cross-examined at length on the relevant issues and no fresh material was placed before the Court to justify recalling the witness. The Court reiterated that the power under Order XVIII Rule 17 is primarily to enable the Court to clarify evidence, not to allow parties to prolong litigation.

Issue 4: Whether the trial Court and High Court erred in dismissing the application to recall the witness

The Court reviewed the factual matrix and proceedings, noting that the witness sought to be recalled was the petitioner's own brother and an Advocate himself. The trial Court had dismissed the application to recall the witness, and this order was affirmed by the High Court in the earlier petition.

The Court found no error in the findings that the witness had been cross-examined extensively and that no new evidence or material was produced to justify further cross-examination. The Court held that the trial Court and High Court had correctly applied the law and exercised their discretion judiciously.

Issue 5: Discretion under Order XVIII Rule 17 and Section 151 CPC and considerations of delay and bona fide application

The Court reiterated the principles from K.K. Velusamy regarding the exercise of discretion under these provisions. The Court emphasized that such powers are to be exercised sparingly, only when the application is bona fide and the additional evidence will assist in clarifying the issues and rendering justice.

The Court underscored the need to prevent the use of such applications as tactics to delay proceedings. It noted that in the absence of new evidence or valid reasons for non-production of evidence earlier, such applications should be rejected with appropriate costs. The Court found that the petitioner's application did not meet these criteria.

3. SIGNIFICANT HOLDINGS

"The power under Section 151 or Order XVIII 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."

"Where the application is found to be bonafide 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 non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence."

"If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the Court should reject the application."

"The provision of Order XVIII Rule 17 of CPC are not intended to enable parties to recall any witness for further cross-examination on which lengthy cross-examination has already been made. In fact it is a provision enabling the Court to clarify any issue or doubt by recalling any witness."

"Electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation."

Final determination: The Review Petition was dismissed as devoid of merit. The Court upheld the trial Court's and High Court's orders dismissing the application to recall the witness for further cross-examination, holding that no error apparent on the face of the record existed and that the principles laid down in K.K. Velusamy were not attracted to the facts of the case.