whether the trial Court is justified in summoning P.W.4, who has already been examined on behalf of the respondent, as a court witness for the purpose of cross examination? - No

THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY        

CIVIL REVISION PETITION Nos.2778  OF 2016 and batch    

31-03-2017

Meka Krishnaveni .....Petitioner

Geddam Kanaka Durga Devi ....Respondent  

Counsel for Petitioner :Sri K.Chidambaram

Counsel for the respondent : sri M.L.Ali

<GIST:

>HEAD NOTE:  

? Cases Referred

  2005 (1) ALD 464
  2007 (3) APLJ (HC) 142
  1999 (6) ALD 789
  2011 (3) ALD 174
  2013 (1) ALD 154


THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY        

CIVIL REVISION PETITION Nos.2778 & 2802 OF 2016    

COMMON ORDER:    
1       Both these Civil Revision Petitions are filed under Article 227
of the Constitution of India challenging the orders dated
04.02.2016 passed in I.A.No.2589 of 2015 and I.A.No.2592 of 2015
in O.S.No.325 of 2008 on the file of the Court of the Additional
Senior Civil Judge, Eluru of West Godavari District wherein and
whereby the trial Court allowed the petitions filed by the
respondentplaintiff one under Section 151 CPC to reopen the
matter and another under Order 18 Rule 17 CPC to summon   
P.W.4 as Court witness for the purpose of cross examination
respectively.
2       Since the point involved in both the Civil Revision Petitions is
intertwined with each other, these two Civil Revision Petitions are
disposed of by this common order.
3       The facts leading to filing of the present Civil Revision
Petitions are as follows:
4       The respondent filed O.S.No.325 of 2008 against the
petitioner on the file of the Additional Senior Civil Judge, Eluru for
declaration and recovery of suit schedule property.  The petitioner
filed written statement opposing the claim of the respondent. The
respondent examined one Samudrala Venkata Chalapathirao as  
P.W.4 in order to prove the recitals of Ex.A.6 gift deed. The
petitioner filed a petition for issuance of summons to P.W.4 to
prove the Will dated 22.06.1996 and the same was dismissed.
Subsequently the petitioner filed I.A.No.1647 of 2015 to recall
P.W.4, which was allowed.  On 13.11.2015 while cross examining
P.W.4, the learned counsel for the petitioner confronted him with
the Will dated 22.06.1996. Contending that since P.W.4 was
examined on her behalf, she did not have the opportunity to cross
examine PW.4, the respondent filed I.A.No.2589 of 2015 to reopen
the matter and I.A.No.2592 of 2015 to issues summons to P.W.4 to
examine him as a court witness for the purpose of cross
examination. The petitioner filed separate counters vehemently
opposing that the petitions are not maintainable under law. After
affording reasonable opportunity to both parties, the trial Court
allowed the two applications.  Hence the present revisions.
5       The learned counsel for the petitioner challenged the
impugned orders on the following grounds: 1) A party to the
proceeding is not entitled to file an application under Order 16
Rule 14 CPC seeking to issue summons to any person to examine  
as a court witness, 2) the respondent has not filed the petition
under correct provision of law and the same was not considered by
the trial Court in right perspective, 3) the trial Court has not
exercised discretionary power vested in it properly, and 4) the
impugned orders are not sustainable either on facts or in law,
therefore, the same are liable to be set aside.
6       Per contra, the learned counsel for the respondent submitted
that 1) a party to the proceedings is entitled to file an application
under Order 16 Rule 14 CPC to examine any person as a court
witness, 2) mere quoting of wrong provision of law by itself is not a
valid ground to dismiss the petition, and 3) the trial Court has
exercised discretionary power judiciously basing on sound
principles of law, therefore, the Civil Revision Petition is liable to be
dismissed.
7       The crucial question that falls for consideration is whether a
party to the proceeding is entitled to file an application to summon
any person to give evidence as a court witness?
8       A perusal of the record reveals that the respondent filed an
application under Order 18 rule 17 CPC to recall P.W.4 as a court
witness for the purpose of cross examination which was allowed.
Order 16 Rule 14 CPC postulates that the Court may at its own
accord summon as witnesses strangers to suit. 
9       The tenor of the affidavit filed by the respondent before the
Court below clearly discloses that the respondent filed the petition
to summon P.W.4 as a court witness for the purpose of cross
examination.  It is not in dispute that the respondent filed petition
under Order 18 Rule 17 CPC to recall P.W.4, for the purpose of
cross examination, as a court witness. The petitioner has taken a
specific plea in the counter that the respondent is not entitled to
file application under Order 18 Rule 17 CPC to recall P.W.4, who is
respondents own witness, for the purpose of cross examination.
The trial Court, after considering the contentions of rival parties,
allowed the petition summoning P.W.4 as a court witness. For all
practical purposes, the petition filed by the respondent before the
trial Court can be treated as an application under Order 16 Rule
14 CPC instead of one under Order 18 Rule 17 CPC.  It is a settled
principle of law that mere quoting of wrong provision of law by
itself is not a valid ground to dismiss the application.
10      The learned counsel for the petitioner strenuously submitted
that a party to the proceedings is not entitled to file an application
under Order 16 Rule 14 CPC in view of the language employed
therein.  To substantiate the argument, he mainly stressed on the
wording the court at any time thinks it necessary to examine any
person.  If the argument of the learned counsel for the petitioner
is accepted, the Court alone can exercise the power suo motu
under Order 16 Rule 14 CPC if the exigency so warrants.  In order
to appreciate the contention of the learned counsel for the
petitioner this Court is placing reliance on the following decisions.
11      In National Insurance Co. Ltd. v. Susru Sea Foods  this
Court held that the jurisdiction of the civil Court under Order 16
Rule 14 CPC can even be set in motion by any of the parties to the
suit.  The same principle is reiterated in Smt. Malabanti Ratnamala
W/o late M.Sudhakar and M.S. Revathi Rani W/o Vijaya Kumar v.
Elishamma @ Elizebeth Shobhan Kumar, Smt. Sumana W/o Dunna      
Praveen and Malathi .
13      In Kosuru Kalinga Maharaju v. Kosuru Kaikamma  this Court
held at para No.5 as follows:  
5. It must be said that filing an application under Order 16,
Rule 14 of CPC by either party to the suit proceedings
seeking to summon any person including a party to the suit
and not called as a witness by a party to the suit, is
permissible. Order 16, Rule 14 of the Code of Civil
Procedure postulates thus:
Court may of its own accord summon as witnesses
strangers to suit:--Subject to the provisions of this Code as
to attendance and appearance and to any law for the time
being in force, where the Court at any time thinks it
necessary to examine any person, including a party to the
suit and not called as a witness by a party to the suit, the
Court may, of its own motion, cause such person to be
summoned as a witness to give evidence, or to produce any
document in his possession, on a day to be appointed, and
may examine him as a witness or require him to produce
such document."
        A reading of the above provision would leave no
doubt in the mind to say that either party to the suit
proceedings can summon a person including a party to the 
suit who is not called as a witness by a party to the suit, as
a witness.
14      As per the principle enunciated in the cases cited supra,
legally there is no bar to file an application under Order 16 Rule 14
CPC by any party to the proceedings to summon any person, to  
give evidence, as court witness.  Having regard to the facts and
circumstances of the case and also the principle enunciated in the
cases cited supra, I am unable to countenance the submission
made by the learned counsel for the petitioner that I.A.No.2592 of
2015 is not maintainable under law.
15      The next question that falls for consideration is whether the
trial Court is justified in summoning P.W.4, who has already been
examined on behalf of the respondent, as a court witness for the
purpose of cross examination?
16      To substantiate the arguments, the learned counsel for the
respondent has drawn the attention of this Court to the ratio laid
down in Mohd. Hussain Khan v. National Insurance Co. Ltd  and
P.Bhaskara Rao v. Wolfgang Ormeloh .  These two decisions deal
with the circumstances under which the Court may recall and
examine the witness.
17      Let me consider the facts of the case on hand in the light of
the above legal principle.
18      The respondent examined P.W.4 as her witness to prove the
recitals of Ex.A.6 gift deed.  Before the trail Court the learned
counsel for the petitioner while cross examining P.W.4 confronted
him by showing a Will dated 22.06.1996.  If there is any ambiguity
in the cross examination of P.W.4, which requires certain
clarification, the course left open to the respondent is to re-
examine the witness with the leave of the Court. For the reasons
best known to her, the respondent did not resort to the remedy
available to her as contemplated under Section 138 of the Indian
Evidence Act on 13.11.2015. As observed earlier, the respondent
filed the application under Order 18 rule 17 CPC seeking to recall
P.W.4 for the purpose of cross examination.  The trial Court
allowed the petition on the sole ground that no prejudice would be
caused to the petitioner even if the petition is allowed though the
exact relief claimed by the respondent falls within the ambit of
Order 16 rule 14 CPC. The court, while exercising the jurisdiction
under Order 18 Rule 17 CPC, can summon any witness already  
examined.  A perusal of Order 18 Rule 17 clearly demonstrates
that a witness, who was recalled under this provision, cannot be
treated as a court witness.  Order 16 Rule 14 CPC deals with
summoning any person, to give evidence, as a court witness basing
on the application filed by the parties to the proceedings or suo
motu by the Court. A witness recalled under Order 18 Rule 17 CPC
cannot be equated with the witness summoned under Order 16
Rule 14 CPC. These two provisions operate in two different
situations. A witness who was examined on behalf of either party
may be summoned for the purpose of further chief examination or
further cross examination, as the case may be, if examination of
such witness is imperative for proper adjudication of the lis
involved in the suit.  A party to the proceedings, who examined a
person as his own witness, is not entitled to cross examine him is
a general principle.  Cross examination of a witness by a party who
called him as his own witness, is an exception that too with the
leave of the court.
19      If the Court permits a party to the proceedings, while
exercising discretionary power under Order 16 Rule 14 CPC, to
summon any person as a court witness, is entitled to examine and
cross examine the witness.  This provision is an exception to the
general provisions of CPC. The Legislature in its wisdom visualized
certain circumstances wherein a party to the proceedings may be
compelled to cross examine his own witness to elicit the relevant
information or the truth which eventually may throw some light on
the core issue involved in the suit.  Therefore, the Legislature
incorporated Order 16 Rule 14 CPC to facilitate the party to the
proceedings to overcome such an adverse situation due to the
reasons beyond his control.  In certain circumstances, a party to
the proceedings may be forced to examine a person with whom he
may not have cordial relation for obvious reasons.  He may have
apprehension that if that particular person is called as his own
witness, he may not speak the relevant facts or truth in his chief-
examination for obvious reasons, which ultimately weakens his
case, if the veracity of the testimony of that witness is not tested by
way of cross-examination. If a party who called a person as his
own witness, is permitted to cross examine him, to certain extent
he may set right the things by eliciting some admissions by putting
suggestions in the cross examination. The underlying object of
Order 16 Rule 14 CPC is to protect the interest of the party to the
proceedings, who summons a person as his own witness.  Wittingly
or unwittingly, the respondent filed an application under Order 18
Rule 17 CPC.  Allowing of such an application is nothing short of
granting a relief under Order 16 Rule 14 CPC. The trial court has
lost site of this vital aspect. The trial Court, without considering
the distinction between Order 18 Rule 17 CPC and Order 16 Rule
14 CPC, allowed the petition filed by the respondent.
20      The crucial question that falls for consideration is whether a
person who was examined as a witness on behalf of one of the
parties to the suit can be called as a court witness?
21      It is not in dispute that the respondent examined P.W.4 as
her own witness and the petitioner also cross examined him.  The
fact remains that by the time of filing of the petition, P.W.4 was
examined as one of the witnesses in the suit.  For better
appreciation of rival contentions, it is not out of place to extract
hereunder Order 16 Rule 14 CPC. 
Order XVI. Summoning and Attendance of Witness   
14. Court may of its own accord summon as witnesses  
strangers to suit:--Subject to the provisions of this Code as
to attendance and appearance and to any law for the time
being in force, where the Court at any time thinks it
necessary to examine any person, including a party to the
suit and not called as a witness by a party to the suit, the
Court may, of its own motion, cause such person to be
summoned as a witness to give evidence, or to produce any 
document in his possession, on a day to be appointed, and
may examine him as a witness or require him to produce 
such document.  
22      A careful perusal of the above provision, at a glance, clearly
demonstrates that a person can be summoned as a court witness if
he is not already called as a witness. There is a legal embargo to
summon a person, who was examined as a witness on behalf of  
one of the parties to the proceedings, as a court witness under
Order 16 Rule 14 CPC.  This view of mine is fortified by the
decision of this Court in Smt. Malabanti Ratnamala case (2
supra) wherein this Court at para No.12 held as follows:
12. A plain reading of Order 16 Rule 14 of CPC shows that
it is the sole discretion of the Court to summon any person
to give evidence as a witness or to produce any document in
his possession, if the Court thinks it necessary. The only
prohibition provided under Rule 14 is that such a person
should not have been called as a witness by a party to the
suit. Though the language of Rule 14 shows that the
discretion has to be exercised by the Court at its own
motion but not on an application made by a party, the law
is well settled that the application, if any, made by the
parties can be taken as an information to the Court and in
case the Court finds it necessary, a witness can be
summoned to give evidence.
23      The decisions cited by the learned counsel for the
respondent are no way helpful to the respondent as those
decisions deal with scope of Order 18 Rule 17 CPC but not Order
16 Rule 14 CPC. 
25      While allowing the petitions, the trial Court has not
considered the scope and underlying object of Order 16 Rule 14
CPC and also the legal embargo created under Order 16 Rule 14 
CPC. 
26      Having regard to the facts and circumstances of the case and
also the principle enunciated in the cases cited supra, I am of the
considered view that the impugned orders are not sustainable
either on facts or in law. Ex facie there is an illegality in the
impugned orders, which warrants interference of this Court while
exercising jurisdiction under Article 227 of the Constitution of
India.
27      In the result, these two Civil Revision Petitions are allowed,
setting aside the orders dated 04.02.2016 passed in I.A.No.2592 of
2015 and I.A.No.2589 of 2015 in O.S.No.325 of 2008 on the file of
the Court of the Additional Senior Civil Judge, Eluru of West
Godavari District.  Consequently I.A.No.2592 of 2015 and
I.A.No.2589 of 2015 in O.S.No.325 of 2008 stand dismissed. No
order as to costs. As a sequel, miscellaneous petitions, if any
connected to these Civil Revision Petitions, shall stand closed.
---------------------------------
T. Sunil Chowdary, J.
Date:  31-03-2017.