order 17

The Hon'ble Supreme Court considering the provisions of Order 17 Rule 1 and Order 18 Rule 17 of Code of Civil Procedure in the case of GAYATHRI .vs. M. GIRISH reported (2016)14 SCC 142 held as under:

7. In K.K. Velusamy [K.K. Velusamy v. N.

Palanisamy, (2011) 11 SCC 275 : (2011) 3 SCC (Civ) 665] , while dealing with the power of the court under Order 18 Rule 17, this Court held that: (SCC pp. 281-82, paras 9-10) "9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The 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. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate [Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 : (2009) 2 SCC (Civ) 198] .)

10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross- examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions."

(emphasis in original) And again: (SCC pp. 285-86, paras 19 & 21) "19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic.

The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.

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21. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. The courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, reopening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency."

We have referred to the said paragraphs to show the purpose of filing an application under Order 18 Rule 17 of the Code. We may add that though in the said decision this Court allowed the appeals in part, the fact situation, the conduct of the party and the grievance agitated were different. The Court also thought it apposite to add a word of caution and also laid down that if the application is mischievous or frivolous, it is desirable to reject the application with costs.

This extract is taken from Gayathri v. M. Girish, (2016) 14 SCC 142 : 2016 SCC OnLine SC 744 at page 147

8. In this context, we may fruitfully refer to Bagai Construction v. Gupta Building Material Store [Bagai Construction v. Gupta Building Material Store, (2013) 14 SCC 1 : (2014) 2 SCC (Civ) 382] . In the said case the Court had expressed its concern about the order passed by the High Court whereby it had allowed the application preferred under Order 18 Rule 17 that was rejected by the trial court on the ground that there was no acceptable reason to entertain the prayer. Be it stated, this Court set aside the order passed by the High Court. In the said case, it has also been held that it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. That apart, it has also been held that the courts should constantly endeavour to follow such a time schedule so that the purpose of amendments brought in the Code of Civil Procedure are not defeated. Painfully, the Court observed: (SCC p. 7, para 15) "15. ... In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still the plaintiff has not placed those bills on record. It further shows that final arguments were heard on a number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC."

This extract is taken from Gayathri v. M. Girish, (2016) 14 SCC 142 : 2016 SCC OnLine SC 744 at page 147

9. In the case at hand, as we have stated hereinbefore, the examination-in-chief continued for long and the matter was adjourned seven times. The defendant sought adjournment after adjournment for cross-examination on some pretext or the other which are really not entertainable in law. But the trial court eventually granted permission subject to payment of costs. Regardless of the allowance extended, the defendant stood embedded on his adamantine platform and prayed for adjournment as if it was his right to seek adjournment on any ground whatsoever and on any circumstance. The non-concern of the petitioner-defendant shown towards the proceedings of the court is absolutely manifest. The disregard shown to the plaintiff's age is also visible from the marathon of interlocutory applications filed. A counsel appearing for a litigant has to have institutional responsibility. The Code of Civil Procedure so command. Applications are not to be filed on the grounds which we have referred to hereinabove and that too in such a brazen and obtrusive manner. It is wholly reprehensible. The law does not countenance it and, if we permit ourselves to say so, the professional ethics decries such practice. It is because such acts are against the majesty of law.

This extract is taken from Gayathri v. M. Girish, (2016) 14 SCC 142 : 2016 SCC OnLine SC 744 at page 148

10. In this context, we may profitably reproduce a passage from Shiv Cotex v. Tirgun Auto Plast (P) Ltd. [Shiv Cotex v. Tirgun Auto Plast (P) Ltd., (2011) 9 SCC 678 : (2011) 4 SCC (Civ) 817] wherein it has been stated that: (SCC p. 682, para 15) "15. It is sad, but true, that the litigants seek--and the courts grant-- adjournments at the drop of the hat. In the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation."

The Court has further laid down that: (SCC p. 682, para 15) "15. ... It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further."

This extract is taken from Gayathri v. M. Girish, (2016) 14 SCC 142 : 2016 SCC OnLine SC 744 at page 148

11. In Noor Mohammed v. Jethanand [Noor Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC (Civ) 754] commenting on the delay caused due to dilatory tactics adopted by the parties, the Court was compelled to say: (SCC p. 215, para 28) "28. In a democratic set-up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casualty. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability.

Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice-dispensation system cannot be allowed to remotely conceive of a casual approach."

And, again: (SCC p. 216, para 31) "31. Thus, from the aforesaid, it is clear as day that everyone involved in the system of dispensation of justice has to inspire the confidence of the common man in the effectiveness of the judicial system. Sustenance of faith has to be treated as spinal sans sympathy or indulgence. If someone considers the task to be Herculean, the same has to be performed with solemnity, for faith is the "élan vital" of our system."