2009 (2) TMI 936 - SC - Indian Laws

Contractual Breach Verdict: Plaintiff Wins Damages for Unmet Obligations and Clear Violation of Agreed Terms

In this case, the SC ruled in favor of the plaintiff, affirming a breach of contract claim. The court found that the defendant failed to fulfill ... Court's power under Order 18 Rule 17 CPC to recall and examine witnesses - recall of witness examined by affidavit - filling lacunae in affidavit evidence - clarification of ambiguity in evidence - exercise of judicial discretion to recall witnesses sparingly - re-examination-in-chief with liberty to cross-examineCourt's power under Order 18 Rule 17 CPC to recall and examine witnesses - recall of witness examined by affidavit - filling lacunae in affidavit evidence - exercise of judicial discretion to recall witnesses sparingly - Whether a witness, whose evidence has been filed by affidavit, can be recalled for further evidence to supply facts omitted from the affidavit. - HELD THAT: - The Court held that Order 18 Rule 17 CPC empowers the Court to recall and examine any witness at any stage, either suo motu or on application by a party, but that power is primarily intended to enable the Court to clarify doubts or remove ambiguities in the evidence led. It is not meant to be used as a mechanism for parties to fill omissions or lacunae in a witness's affidavit where the omitted facts were within the witness's knowledge when the affidavit was prepared. Where the evidence sought to be added was available at the time the affidavit was affirmed and the omission comes to light only after cross-examination, recall for the purpose of supplementing the affidavit is impermissible. The rule must be exercised sparingly and in appropriate cases; if re-examination would genuinely affect the ultimate decision, the Trial Court may in its discretion permit recall with liberty to the other side to cross-examine, but no such case was shown on the record before this Court. [Paras 2, 16, 17, 18]Application to recall the witness to supply facts omitted from his affidavit was rightly rejected; recall under Order 18 Rule 17 CPC cannot be used to fill lacunae in affidavit evidence and is to be exercised sparingly to clarify ambiguities.Final Conclusion: Appeal dismissed; recall of a witness whose evidence is on affidavit cannot be ordered merely to fill omissions in that affidavit and the discretionary power under Order 18 Rule 17 CPC must be exercised sparingly to clarify ambiguities or where re-examination would bear on the ultimate decision. 1. ISSUES PRESENTED and CONSIDEREDThe principal legal question considered by the Court was whether a witness, whose evidence had been recorded by way of affidavit, could be recalled for further examination-in-chief to introduce facts not mentioned in the original affidavit. This raised subsidiary questions regarding the scope and exercise of the Court's discretion under Order 18 Rule 17 of the Code of Civil Procedure (CPC), specifically:Whether the Court's power to recall a witness under Order 18 Rule 17 CPC extends to allowing a party to fill gaps or omissions in the witness's affidavit evidence after completion of examination and cross-examination.The extent to which the Court should exercise this power to recall a witness, especially when the omitted facts were known to the witness at the time the affidavit was prepared.Whether allowing such recall would cause prejudice to the opposing party and how such considerations affect the exercise of discretion.The nature and purpose of Order 18 Rule 17 CPC in relation to recall of witnesses, including whether it is intended to enable the Court to clarify ambiguities or to permit supplementation of evidence.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Scope of Order 18 Rule 17 CPC regarding recall of witnesses examined by affidavitRelevant legal framework and precedents: Order 18 Rule 17 CPC provides that the Court may, at any stage of the suit, recall any witness already examined and put such questions as it thinks fit, subject to the law of evidence. The Court's power under this provision has been judicially interpreted as discretionary and to be exercised sparingly. The Court referred to the judgment in Smt. M.N. Amonkar and Ors. v. Dr. S.A. Johari, which held that rejection of an application under this rule cannot be deemed non-judicial unless the reasons are 'moonshine, flimsy or irrational.' Other High Court decisions such as S.S.S. Durai Pandian v. Samuthira Pandian, Satinder Singh v. Sukhdev, and Om Prakash v. Sarupa and Ors. were cited to affirm that the Court may recall witnesses suo motu or on party application.Court's interpretation and reasoning: The Court recognized that while the power to recall witnesses is broad, its primary purpose is to clarify doubts or ambiguities in the evidence already led. It is not intended as a tool to fill omissions or lacunae in the witness's affidavit evidence after examination and cross-examination have concluded. The Court emphasized that the power is to be exercised sparingly and not as a matter of routine or to enable a party to remedy inadvertent omissions by their counsel.Key evidence and findings: The witness in question, Sadanand Shet, was a constituted attorney and had prepared an affidavit of evidence. The appellant sought to recall him to introduce facts omitted from the affidavit but known at the time of its preparation. The Court found that these facts were not newly discovered but were available when the affidavit was affirmed, and the omission only became apparent after cross-examination.Application of law to facts: Applying the above principles, the Court held that the appellants' attempt to recall the witness to fill gaps in his affidavit evidence was impermissible. The recall was not to clarify ambiguities but to supplement evidence already recorded, which is contrary to the intended use of Order 18 Rule 17 CPC.Treatment of competing arguments: The appellant argued that the power under Order 18 Rule 17 CPC was wide and that recalling the witness would not prejudice the respondents, who could cross-examine the witness again. The respondents contended that the power must be exercised with care and not to fill lacunae in evidence. The Court sided with the respondents, emphasizing the discretionary and exceptional nature of the power.Conclusion: The Court concluded that recalling a witness to introduce facts omitted from an affidavit, which were known at the time of affidavit preparation, is not permissible under Order 18 Rule 17 CPC.Issue 2: Discretionary nature of the power to recall witnesses and its exercise in the present caseRelevant legal framework and precedents: The Court referred to the Allahabad High Court decision in Sunder Theaters v. Allahabad Bank, which held that the power under Order 18 Rule 17 CPC is discretionary and must be exercised with great care and only in exceptional circumstances. The Court also noted the principles akin to Order 47 CPC (which deals with setting aside judgments) could inform the exercise of discretion under Order 18 Rule 17 CPC.Court's interpretation and reasoning: The Court emphasized that the discretion to recall a witness lies with the trial Court and must be exercised to ensure complete justice but not to allow parties to fill gaps in evidence after cross-examination. The Court observed that the present case did not present exceptional circumstances warranting recall, particularly since the omitted facts were known at the time of affidavit preparation.Key evidence and findings: The omission was attributable to inadvertence by the appellant's counsel. The Court found that the application to recall was an afterthought prompted by cross-examination and not by discovery of new facts.Application of law to facts: The Court applied the discretionary standard strictly and found no error in the lower Courts' refusal to recall the witness. It held that allowing recall in such circumstances would undermine the finality and fairness of the trial process.Treatment of competing arguments: The appellant's argument that no prejudice would be caused and that the opposing party could cross-examine again was rejected as insufficient to justify recall. The Court underscored that the power is not meant to be exercised merely because it can be done without prejudice.Conclusion: The Court upheld the exercise of discretion by the lower Courts in refusing to recall the witness, affirming that the power must be exercised sparingly and not to fill gaps in evidence.3. SIGNIFICANT HOLDINGS'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.''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.''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... 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.''Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case.'Final determination: The appeal was dismissed, affirming the lower Courts' orders rejecting the application to recall the witness for further examination-in-chief to introduce omitted facts known at the time of affidavit preparation. The Court held that such recall is impermissible under Order 18 Rule 17 CPC and that the power to recall is discretionary, to be exercised sparingly, and primarily for clarifying ambiguities rather than filling evidentiary gaps.