SANTOSH KUMAR BERRY Vs. NIRMALA DEVI AND OTHERS

JUDGEMENT

(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. In a judgment of the Supreme Court in Rajeshwari v. 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 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 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.

(2.) 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 v. 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 different situation, akin to the present situation in K.K. Velusamy v. N Palanisamy, 2011 AIR(SC) 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: