The Andhra Pradesh High Court has reiterated that inherent powers under Section 151 of the Code of Civil Procedure, 1908 (CPC) cannot be invoked routinely to recall witnesses for cross-examination. The Court dismissed two civil revision petitions filed by legal representatives of a deceased defendant, holding that the trial court was justified in rejecting applications for recall of witnesses where no subsequent developments or additional defences were raised in the written statement.
Background & Facts
The Dispute
The dispute originated from a suit for perpetual injunction filed in 2016 by the plaintiffs (Kavitha and Anitha) against the defendants (K. Nagaraju and others) before the Junior Civil Judge, Nagari. The suit was pending when defendant No.1 (K. Krishnamoorthy) and plaintiff No.2 (identity not specified) died. Their legal representatives were subsequently impleaded as parties to the suit.
Key Facts
- 15.03.2016: Suit for perpetual injunction (O.S. No. 28/2016) filed by plaintiffs against defendants.
- Subsequent Event: Plaintiff No.2 and defendant No.1 died during the pendency of the suit.
- 04.03.2022: Legal representatives of defendant No.1 (defendants 3 and 4) and plaintiff No.2 (plaintiffs 3 to 5) were brought on record.
- Defendants 3 and 4 filed a separate written statement after impleadment.
- Evidence Stage: After the closure of evidence of D.W.4, defendants 3 and 4 filed applications under Section 151 CPC and Order XVIII Rule 17 CPC to recall P.Ws.1 and 2 for cross-examination.
Procedural History
- I.A. No. 895/2022: Application under Order XVIII Rule 17 and Section 151 CPC to recall P.Ws.1 and 2 for cross-examination.
- I.A. No. 896/2022: Application under Section 151 CPC to reopen the evidence of the plaintiff.
- 27.12.2022: Trial court dismissed both applications, holding that no subsequent developments warranted recall of witnesses.
- C.R.P. Nos. 197 and 202/2023: Civil revision petitions filed by defendants 3 and 4 challenging the trial court’s order.
The Parties' Positions
For the Petitioners (Defendants 3 and 4)
- Contended that as legal representatives of defendant No.1, they were entitled to cross-examine P.Ws.1 and 2.
- Argued that they filed a separate written statement, necessitating cross-examination of witnesses.
For the Respondents (Plaintiffs)
- Opposed the applications, arguing that defendant No.1 had already cross-examined P.Ws.1 and 2 at length.
- Contended that the applications were filed to fill lacunae in the defence and lacked bona fide grounds.
- Submitted that no additional defences were raised in the written statement filed by defendants 3 and 4.
Relief Sought
The petitioners sought the following reliefs:
- Recall of P.Ws.1 and 2 for cross-examination.
- Reopening of evidence to allow further examination of witnesses.
The Legal Issue
The central question before the High Court was whether the trial court’s order dismissing the applications under Section 151 CPC and Order XVIII Rule 17 CPC suffered from any illegality, warranting interference under Article 227 of the Constitution of India.
Arguments Presented
For the Petitioners
- Relied on the inherent powers of the court under Section 151 CPC to argue that defendants 3 and 4, as legal representatives, were entitled to cross-examine witnesses.
- Contended that the trial court erred in dismissing the applications without considering their right to cross-examine.
For the Respondents
- Argued that the applications were filed to fill lacunae in the defence and lacked bona fide grounds.
- Relied on the precedent in K.K. Velusamy v. N. Palanisamy to contend that Section 151 CPC cannot be invoked routinely to recall witnesses.
- Submitted that defendant No.1 had already cross-examined the witnesses, and no subsequent developments warranted recall.
The Court's Analysis
The High Court examined the scope of Section 151 CPC and Order XVIII Rule 17 CPC in light of the precedents cited by both parties. The Court relied extensively on the principles laid down in K.K. Velusamy v. N. Palanisamy and Vadiraj Nagappa Vernekar v. Sharadchandra Prabhakar Gogate to hold that inherent powers under Section 151 CPC cannot be invoked routinely to recall witnesses.
"Section 151 of C.P.C. cannot be routinely invoked for reopening evidence or recalling witnesses. The Hon’ble Apex Court, in K.K. Velusamy v. N. Palanisamy, summarized as follows:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is 'right' and undo what is 'wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it.
(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in a manner inconsistent with such provisions.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case.
(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court."
The Court further relied on Vadiraj Nagappa Vernekar v. Sharadchandra Prabhakar Gogate to emphasize that Order XVIII Rule 17 CPC cannot be invoked to fill lacunae in evidence but only to clarify ambiguities arising during examination.
"The Hon’ble Apex Court, in Vadiraj Nagappa Vernekar v. Sharadchandra Prabhakar Gogate, considered the scope of Order XVIII and Rule 17 of C.P.C. and held as under at para 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 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.'"
The Court observed that defendants 3 and 4 failed to assign any reasons for recalling the witnesses or disclose any subsequent developments in their written statement. The trial court had recorded a finding that defendant No.1 had already cross-examined P.Ws.1 and 2 at length, and no additional issues were framed based on the written statement of defendants 3 and 4. Thus, the Court held that the trial court’s order did not suffer from any illegality or irregularity.
The Verdict
The High Court dismissed both Civil Revision Petitions (C.R.P. Nos. 197 and 202/2023). The Court directed the trial court to expedite the disposal of the suit (O.S. No. 28/2016) preferably within six months from the date of receipt of the copy of the order. All pending miscellaneous applications were closed as a sequel to the judgment.
What This Means For Similar Cases
Inherent Powers Cannot Be Invoked Routinely
- Courts must exercise inherent powers under Section 151 CPC with circumspection and only when absolutely necessary to meet the ends of justice.
- Applications for recall of witnesses or reopening of evidence must be supported by bona fide grounds and cannot be filed merely to fill lacunae in the defence.
Recall of Witnesses Requires Subsequent Developments
- Order XVIII Rule 17 CPC permits recall of witnesses only to clarify ambiguities arising during examination, not to introduce new evidence or fill gaps in the defence.
- Legal representatives seeking to recall witnesses must demonstrate subsequent developments or additional defences raised in their written statement to justify such applications.
Trial Courts Must Scrutinize Applications Strictly
- Trial courts should strictly scrutinize applications for recall of witnesses to prevent abuse of process.
- The absence of additional issues or defences in the written statement filed by legal representatives may justify rejection of such applications.
