When Can Courts Reopen Evidence Under Section 151 CPC After Trial Closes: J&K&L High Court Explains

The Court further underscored that for the purposes of producing any additional evidence which a party comes across after the evidence was closed, the Court has the power under Section 151 of the Code to permit such party to lead additional evidence in an appropriate case, if it is necessary in the interests of justice.

The Court made these observations while partly allowing the petition, setting aside the trial court's order to the extent of imposing costs and recalling two witnesses, while upholding the recall of the petitioner and the permission granted to the respondent to produce two additional witnesses.

The Court was hearing a petition challenging an order passed by the Additional Principal Judge, Family Court, Jammu, whereby an application filed by the respondent under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure, for summoning/recalling of witnesses and for producing additional evidence, was allowed.

The petitioner had filed a petition under Section 13 of the Hindu Marriage Act against the respondent seeking dissolution of marriage on the grounds of desertion, non-compliance with the decree passed under Section 9 of the said Act, and cruelty.

The petition was heard by Justice Sanjay Dhar, who observed,

“While Order XVIII Rule 17 CPC takes care of a situation where the Court finds it necessary to clarify any doubt which it may have with regard to the evidence led by the parties, the said provision cannot be used to enable the parties to recall any witness for further examination-inchief and cross-examination or to place additional material or evidence which could not be produced when the evidence was being led. It is also clear that, for the purposes of producing any additional evidence which a party comes across after the evidence was closed, the Court has the power under Section 151 CPC to permit such party to lead additional evidence in an appropriate case, if it is necessary in the interests of justice.”

Background

The petitioner filed a petition under Section 13 of the Hindu Marriage Act against the respondent seeking dissolution of marriage on the grounds of desertion and non-compliance with the decree passed against her under Section 9 of the Act. The petitioner also alleged that he had been treated with cruelty by the respondent.

The respondent contested the petition by filing objections, and the trial court framed issues as to whether the respondent had treated the petitioner with cruelty, whether she had deserted him, and the relief to which the petitioner was entitled.

The petitioner examined himself as a witness, besides examining PWs Prem Nath, Beli Ram and Sansar Chand. The respondent examined herself and RWs Darshal Lal, Parshotam Kumar and Sunita Devi. After the conclusion of evidence, when the case was set down for final arguments, the respondent filed an application under Order XVIII Rule 17 read with Section 151 CPC seeking recall of the petitioner and his witnesses for further cross-examination, and permission to examine Raman Kumar and Priya Rani in support of her case.

In the application, the respondent pleaded that recalling and examining the said witnesses was material for the just decision of the case because only a few days earlier she had come to know that the petitioner had, during the subsistence of his first marriage, entered into wedlock with one Laxmi Devi, from whom he has three children.

This fact was disclosed to her when she met Raman Kumar, who happens to be the son-in-law of the petitioner from his daughter Priya Rani, born to him through his second wife Laxmi Devi. The petitioner resisted the application. The trial court, however, allowed the application, permitting the respondent to recall the petitioner and PWs Sansar Chand and Prem Nath, and to examine Raman Kumar and Priya Rani as witnesses. The trial court also imposed costs of Rs. 10,000 upon the petitioner.

The petitioner challenged the impugned order on the grounds that there was no need to reopen the evidence, that it was not open to the trial court to burden the petitioner with costs without finally deciding whether he had in fact entered into wedlock with Laxmi Devi, and that the impugned order was illegal and passed without application of mind.

Court's Observation

The Court observed that the trial court, while passing the impugned order, had exercised its jurisdiction under Order XVIII Rule 17 CPC read with Section 151 CPC. The Court noted that Order XVIII Rule 17 CPC vests the Court with the power to recall any witness who has been examined and to put such questions as it thinks fit, and that the main purpose of the Rule is to enable the Court to clarify any doubt which it may have with regard to the evidence led by the parties.

The Court referred to Vadiraj Nagappaa Vernekar (dead) through LRs. v. Sharadchandra Prabhakar Gogate (2009), wherein the Hon'ble Supreme Court interpreted the provisions of Order XVIII Rule 17 CPC and held,

“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 enable a party to fill up lacunae or omissions in his evidence.”

The Court further referred to K.K. Velusamy v. N. Palanisamy (2011), wherein the Hon'ble Supreme Court held that the power to recall any witness under Order XVIII Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties, but such power is discretionary and should be used sparingly in appropriate cases to enable the Court to clarify any doubts it may have in regard to the evidence led by the parties, and is not intended to be used to fill up omissions in the evidence of a witness who has already been examined.

The Court observed that Section 151 CPC provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

The Court noted that in K.K. Velusamy (2011), the Hon'ble Supreme Court held that in the absence of any provision providing for reopening of evidence or recall of any witness for further examination or cross-examination for purposes other than securing clarification required by the Court, the inherent power under Section 151 CPC, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and recall witnesses for further examination.

The Court further noted the principles summarized by the Hon'ble Supreme Court governing the exercise of power under Section 151 CPC, including that the power is not a substantive provision creating jurisdiction, that it can be used where the Code does not cover a procedural aspect, that the Court cannot do what is prohibited by law, and that the power must be used with circumspection and care, only where absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, and when such exercise is to meet the ends of justice and to prevent abuse of process of Court.

Applying the legal position to the facts, the Court noted that the respondent's case was that she had recently come to know of the second marriage of the petitioner with Laxmi Devi, and that this fact came to her knowledge when she met Raman Kumar in the Court Complex, Jammu.

The Court noted that the petitioner contended that the fact of the second marriage was well within the knowledge of the respondent as she had filed a complaint under Section 494 RPC against the petitioner, which was dismissed in 2014. However, the Court observed that the said complaint alleged that the petitioner had solemnized marriage with one Bholi Devi, which fact was not proved, whereas the respondent now alleged that the petitioner had entered into wedlock with one Laxmi Devi, who was not the same lady.

The Court noted that the respondent had placed on record a copy of the Aadhaar Card of Priya Rani reflecting the name of the petitioner as her father, a copy of the petition under Section 12 of the Hindu Marriage Act filed by Priya Rani against Raman Kumar reflecting her parentage as daughter of Mangat Ram, and a copy of the marriage agreement between Raman Kumar and Priya Rani showing Mangat Ram as the father of Priya Rani. The Court observed that these documents prima facie went on to show that Priya Rani is the daughter of the petitioner.

The Court held,

“The evidence sought to be led by the respondent pertains to the conduct of the petitioner and, as such, the Court, in exercise of its power under Section 151 CPC, would be justified in permitting production of such evidence, as it is relevant and necessary in the interests of justice to do so.”

The Court further observed that if after the trial it was established that the petitioner had entered into wedlock during the subsistence of his marriage with the respondent, it would have a bearing upon the outcome of the issue as to whether the respondent was justified in not joining the company of the petitioner, and it would also be a good defence to the respondent against the evidence led by the petitioner to prove the allegations of cruelty.

The Court held that since important and relevant evidence was sought to be produced by the respondent, it would be necessary for the Court to recall the petitioner to elicit the requisite information and clarify the doubts arising from the evidence led by the parties, by exercising its power under Order XVIII Rule 17 CPC.

The Court, however, held that so far as recalling of other witnesses of the petitioner, PWs Sansar Chand and Prem Nath, was concerned, the same would be an unnecessary exercise, as the said persons, during their cross-examination, had clearly stated that they were not aware of the second marriage of the petitioner. To that extent, the impugned order was not sustainable in law, Justice Dhar opined.

The Court further held that the direction of the trial court for imposition of costs of Rs. 10,000 upon the petitioner was also not sustainable, because the second marriage of the petitioner with Laxmi Devi was a fact yet to be established, and without recording such a finding, it could not be stated that the petitioner had concealed the fact with regard to his second marriage.

In view of these findings the Court partly allowed the petition and set aside the impugned order to the extent of imposition of costs of Rs. 10,000 upon the petitioner and the direction regarding recall of PWs Sansar Chand and Prem Nath.

The impugned order, to the extent of recall of the petitioner for his examination and grant of permission to the respondent to produce Raman Kumar and Priya Rani as witnesses, was upheld and the trial Court was directed to proceed further in the matter in accordance with the observations made by the Court.