Case No: Civil Appeal No. 74 of 1984
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Mr. Rafique-ul-Huq,MR. SR Pal,,
Citation: 37 DLR (AD) (1985) 32
Case Year: 1985
Appellant: Nurul Islam
Respondent: Md. Abdur Rashid
Subject: Civil Law,
Delivery Date: 1984-8-20
FKMA Munim CJ
Badrul Haider Chowdhury J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J
Md. Abdur Rashid & ors
August 20, 1984.
The Code of Civil Procedure, 1908
Order XVIII, rule 17
Discretionary power under Order XVIII, rule 17 to recall a witness must be exercised judicially and not arbitrarily.
Discretionary power under Order XIIX rule 17 of the Code of Civil Procedure shall have to be exercised subject to law of Evidence for the time being in force. Discretionary power of the Court cannot be exercised for helping the litigant who is not vigilant and certainly such power cannot be exercised for giving undue advantage to a party .........(4)
Exercise of discretion for recalling the plaintiff after 2½ years was irregular exercise of power and such order must be set aside. The Appeal is allowed and judgment and order of the High Court Division are set aside………(6)
Cases Referred to:
Madhubhai Amthalal vs. Amthal Nandalal, AIR 1947 Bombay, 156; Municipal Corporation of greater Bombay Vs Lal Panchm and others A.I.R. 1965 (SC) 1008.
Rafique Ul Huq, Senior Advocate (Aminul Huq, Advocate with him) instructed by Sharif-Uddin Chaklader Advocate-on-Record—For the Appellant.
S. R. Pal, Senior Advocate, Instructed by Zinnur Ahmed, Advocate-on-Record—For the Respondents No. 1.
Not represented—For the Respondents Nos. 2 to 5.
Civil Appeal No. 74 of 1984
(From the judgment and order dated 6.2.84 passed by the High Court Divisions, Dhaka Bench in Revision Case No. 434 of 1983.)
This appeal directed by special leave against the judgment and order of the High Court Division dated 4.9.83 in Civil Revision No. 434 of 53. The respondents filed a suit for special performance of contract. The suit is pending. It would not be adviseable to make any comment. Accordingly in this judgment we refrain from touching the factual aspects of the case.
2. Leave was granted to consider the scope of Order 18, rule 17 of the Code of Civil Procedure in the context of facts and circumstances of the case which may be noticed in passing. The suit was filed on 31.8.1978 and the written statement was filed on 12.1.79 and by 1979 and 1980 other defendants also filed written statements. P.W. 1 was examined on 21.4.81 and his cross examination was over on 29.4.81. Thereafter by 13.6.81 P.Ws. 2 to 11 deposed in the case whereupon the examination of D.W.1 started on 3.7.81 and his examination continued up to 28.7.81. Certain untoward incident took place namely kidnapping of D.W. 1 and warrant for his arrest was issued on 30.10.81. D.W.2 completed his deposition on 12.7.82 and thereafter deposition of D.Ws. 3 to 9 were completed on 8.3.83.
3. In this background the plaintiff filed an application for recalling of his re-examination on 4.8.83. On previous occasion two more witnesses of the plaintiff were examined after the closure of the plaintiff's evidence notwithstanding the unsuccessful objection of the defence, and the High Court Division in affirming the prayer for examination of those witnesses observed that this should have neither been treated as a precedent nor an encouragement either in this suit or any other suit. The appellant contended that the plaintiff being so encouraged filed a present petition on 4.8.83 for his re-examination and it is contended that obvious purpose is to fill up the lacuna in evidence. In Civil Revision No. 434 of 1983 the defendant objected to this prayer and the High Court Division, however allowed the prayer by its judgment dated 6.2.84.
4. Leave was granted to consider as to the correctness of the decision of the High Court Division. Order 18, rule 17 of the Code was noticed by the High Court Division and learned Judges took the view that interference under section 115 C.P.C. is not warranted in the background, and the circumstances though a note of caution was passed "that the ultimate responsibility of the Court to confine the parties to the pleadings should not be over-looked or lightly brushed aside.... It will be for the trial court to examine the propriety of those questions in terms of law". In view of this matter the rule was discharged. Order 18, rule 17 C.P.C. is in the following terms:
This is an enabling power and very wide power had been conferred for adjudication of the dispute and this power is only available for giving justice inasmuch as the enabling power conferred upon the court to put such question "to him as the court thinks fit". This discretionary power is to be used for ends of justice arid a litigant cannot claim exercise of such discretionary power when the rules of evidence do not permit such course. Thus Rule itself says that this power may be exercised subject to the law of evidence for the time being in force. In the foregoing paragraph the material dates have been noticed and it is clear that this is an attempt for an obvious purpose inasmuch as after about 2 years such a petition was filed. Discretionary power of the Court cannot be exercised for helping the litigant who is not vigilant and certainly such power cannot be exercised for giving undue advantage to a party. The trial court allowed the prayer of the plaintiff on the ground that this is a "highly contested" matter and exercised discretion in favour of the plaintiff. Discretion is to be exercised in accordance with sound principles of law and not by humour. Only because it is a highly contested matter this power under Order 18, Rule 17 ought not to have been used. The High Court Division though noticed that the ultimate responsibility of the Court to confine the parties to the pleadings should not be overlooked or lightly brushed aside "yet refused to interfere" in the background of the circumstances". It is unfortunate that the High Court Division did not specify the "circumstances" which impelled them to pass the order. The learned Judges noticed the contention of the plaintiff that the defendants have brought on evidence certain facts beyond the scope of the pleadings. Probably that was the circumstances which prevailed upon the High Court Division. One wrong is not remedied by another wrong. If the defence did really bring any evidence contrary to the rule of procedure and evidence that would not mean a premium for the plaintiff to pray for recall of the plaintiff himself for re-examination after 2 1/2 years.
5. In Madhubhai Amthalal Nandalal vs. Antalal AIR 1947 Bombay, 156, a Single Judge faced with a similar problem and concluded:
Again the Indian Supreme Court in the Municipal Corporation of greater Bombay Vs. Lal Panchm and others A.I.R. 1965 (SC) 1008 concluded:
6. These are sound judicial principles and they are to be kept in view while exercising such discretionary power and any deviation from such charted path is bound to lead to confusion and uncertainty. The procedural law is designed to facilitate justice further its end. Discretion is to be exercised according to law. It is not to be arbitrary, vague and fanciful but legal and regular (Sharpe Vs. Natefield 1891 A.C. 173 (179). In view of the above there is no hesitation in saying that exercise of such discretion for recalling the plaintiff after 2 1/2 years was irregular exercise of power and such order must be set aside.
In the result, the appeal is allowed and judgment and order of the High Court Division are set aside.