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                                REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  1787  OF 2013                (Arising out of S.L.P. (C) No.35268 of 2011)

M/s Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai          .... Appellant(s)

Versus

M/s Gupta Building Material Store       ....  Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.

2) This  appeal  is  directed  against  the  order  dated  

23.08.2011 passed by the High Court of Delhi at New Delhi  

in C.M.(M) No. 707 of 2010 (Civil Revision No. 707 of 2010)  

whereby the learned single Judge of the High Court allowed  

the revision filed by the respondent herein and set aside the  

order  dated  25.02.2010  of  the  Additional  District  Judge,  

Delhi.

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3) Brief facts:

(a) The  appellant  is  a  proprietorship  concern  dealing  in  

interior decoration and construction work and Mr. Lalit Bagai  

is the sole proprietor of the said concern.  The respondent is  

a partnership firm registered with the Registrar of Firms vide  

Registration No. 1237/93 dated 07.06.1993 and is engaged  

in the business of sale and supply of building materials.  

(b) Admittedly,  the  appellant  and respondent  have often  

transacted with each other.   According to the respondent,  

the appellant made various purchases on credit from them  

for which payments were made in parts and the same were  

credited to his account maintained by them.  It is alleged by  

the respondent that after adjusting all the payments being  

made by the appellant, an amount of Rs.4,35,250.18 is due  

against his firm.  Despite repeated demands, requests, and  

reminders,  the  appellant  has  not  cleared  the  outstanding  

amount.  Therefore, the respondent sent legal notice dated  

11.04.2005 to the appellant through his counsel calling upon  

him to pay the outstanding dues along with interest @ 2%  

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per  month.  Despite  notice,  the appellant  did  not  pay any  

amount, therefore, the respondent instituted a suit against  

him  for  recovery  of  sum  of  Rs.4,35,250.18  along  with  

interest  accrued  thereon.  After  the  arguments  were  

concluded  in  the  suit  on  27.10.2009,  the  matter  was  

adjourned for judgment on 03.11.2009.  

(c) In the meantime, on 31.10.2009 the respondent moved  

two applications, one   under Order VII  Rule 14 read with  

Section 151 of the Code of Civil  Procedure, 1908 (in short  

“CPC”)  for  placing  on  record  certain  documents  and  the  

other under Order XVIII Rule 17 read with Section 151 of CPC  

for  seeking  permission  to  recall  PW-1  for  proving  certain  

documents  by  leading  his  additional  evidence.   By  order  

dated  25.02.2010,  the  Additional  District  Judge,  Delhi  

dismissed both the applications.   

(d) Dissatisfied  with  the  said  order,  the  respondent  filed  

revision  petition  being   CM  (M)  No.  707  of  2010  (Civil  

Revision No. 707 of 2010) before the High Court of Delhi.  

The  learned  single  Judge  of  the  High  Court  by  impugned  

order dated 23.08.2011 allowed the revision and set aside  

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the order dated 25.02.2010 passed by the Additional District  

Judge, Delhi.   

(e) Aggrieved  by  the  said  order,  the  appellant  has  

preferred this appeal by way of special leave.

4) Heard  Mr.  Siddharth  Yadav,  learned  counsel  for  the  

appellant  and  Mr.  Jinendra  Jain,  learned  counsel  for  the  

respondent.

5) The  only  point  for  consideration  in  this  appeal  is  

whether the plaintiff has made out a case for allowing the  

applications one filed under Order XVIII  Rule 17 read with  

Section  151  CPC and  another  application  under  Order  VII  

Rule  14  read  with  Section  151  CPC?   The  trial  Court  

dismissed both the applications, however, the High Court by  

the impugned order set aside the order of the trial Court and  

directed taking on record the bills which are proposed to be  

filed by the plaintiff,  granted permission to recall  PW-1 to  

prove  those  bills.   The  High  Court  passed  such  order  in  

favour  of  the  plaintiff  subject  to  payment  of  cost  of  

Rs.5,000/-

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6) In order to find out the acceptability of the impugned  

order or not, it is useful to refer the relevant provisions of  

the CPC which read thus:

“Order VII Rule 14  

14. Production of document on which plaintiff sues  or relies.- (1) Where a plaintiff sues upon a document or  relies upon document in his possession or power in support  of his claim, he shall enter such documents in a list, and  shall produce it in Court when the plaint is presented by  him and shall, at the same time deliver the document and  a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or  power of the plaintiff, he shall, wherever possible, state in  whose possession or power it is. (3) A document which ought to be produced in Court by  the plaintiff when the plaint is presented, or to be entered  in the list to be added or annexed to the plaint but is not  produced  or  entered  accordingly,  shall  not,  without  the  leave of the Court, be received in evidence on his behalf at  the hearing of the suit. (4) Nothing  in  this  rule  shall  apply  to  document  produced  for  the  cross  examination  of  the  plaintiff’s  witnesses, or, handed over to a witness merely to refresh  his memory.”

Order XVIII Rule 17

“17.  Court  may  recall  and  examine  witness.- The  Court may at any stage of a suit recall any witness who has  been examined and may (subject to the law of evidence for  the time being in force) put such questions to him as the  Court thinks fit.”

Section 151 of CPC

“151. Saving of inherent powers of Court.- Nothing in  this Code shall be deemed to limit or otherwise affect the  inherent power of the Court to make such orders as may  

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be necessary for the ends of justice or to prevent abuse of  the process of the Court.”

7) Before  going  into  the  merits  of  claim  of  both  the  

parties, let us recapitulate the views expressed by this Court  

through recent decisions.

8) In  Vadiraj  Naggappa  Vernekar  (dead)  through  

LRs. vs.  Sharadchandra  Prabhakar  Gogate,  (2009)  4  

SCC  410,  this  Court  had  an  occasion  to  consider  similar  

claim, particularly, application filed under Order XVIII Rule 17  

and   held as under:  

“25. In our view, though the provisions of Order 18 Rule 17  CPC have been interpreted to include applications  to be  filed  by  the  parties  for  recall  of  witnesses,  the  main  purpose of the said Rule is 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 said provisions are  not intended to be used to fill up omissions in the evidence  of a witness who has already been examined.

28. 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 not cause any prejudice to  the parties. That is not the scheme or intention of Order 18  Rule 17 CPC.

29. It  is  now  well  settled  that  the  power  to  recall  any  witness under Order 18 Rule 17 CPC can be exercised by  the court either on its own motion or on an application filed  by  any  of  the  parties  to  the  suit,  but  as  indicated  hereinabove, such power is to be invoked not to fill up the  lacunae in the evidence of the witness which has already  been recorded but to clear any ambiguity that may have  arisen during the course of his examination.

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31. Some of the principles akin to Order 47 CPC may be  applied  when  a  party  makes  an  application  under  the  provisions  of  Order  18 Rule  17 CPC,  but  it  is  ultimately  within the court's discretion, if it deems fit, to allow such  an application.  In  the present  appeal,  no such case has  been made out.”

9) If we apply the principles enunciated in the above case  

and the limitation as explained with regard to the application  

under  Order  XVIII  Rule  17,  the  applications  filed  by  the  

plaintiff have to be rejected.  However, learned counsel for  

the respondent by placing heavy reliance on a subsequent  

decision,  namely,  K.K.  Velusamy vs.  N.  Palanisamy,  

(2011) 11 SCC 275, submitted that with the aid of Section  

151 CPC, the plaintiff  may be given an opportunity to put  

additional  evidence  and  to  recall  PW-1  to  prove  those  

documents  and  if  need  arises  other  side  may  be  

compensated.       According to him, since the High Court has  

adopted the said course, there is no need to interfere with  

the same.  

10) In  Velusamy  (supra) even  after  considering  the  

principles  laid  down  in  Vadiraj  Naggappa  Vernekar  

(supra) and  taking  note  of  Section  151  CPC,  this  Court  

concluded  that  in  the  interests  of  justice  and  to  prevent  

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abuse of the process of the Court, the trial Court is free to  

consider whether it was necessary to reopen the evidence  

and if so, in what manner and to what extent.  Further, it is  

observed that the evidence should be permitted in exercise  

of its power under Section 151 of the Code.  The following  

principles laid down in that case are relevant:  

“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.

With these principles, let us consider the merits of the case  

in hand.   

11) The  perusal  of  the  materials  placed  by  the  plaintiff  

which are intended to be marked as bills have already been  

mentioned by the plaintiff in its statement of account but the  

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original bills have not been placed on record by the plaintiff  

till the date of filing of such application.  It is further seen  

that during the entire trial, those documents have remained  

in exclusive possession of the plaintiff  but for the reasons  

known to it, still  the plaintiff has not placed these bills on  

record.   In  such circumstance,  as rightly  observed by the  

trial  Court  at  this  belated  stage  and  that  too  after  the  

conclusion of  the  evidence and final  arguments  and after  

reserving the matter for pronouncement of judgment, we are  

of the view that the plaintiff cannot be permitted to file such  

applications to fill the lacunae in its pleadings and evidence  

led by him.  As rightly observed by the trial Court, there is no  

acceptable reason or cause which has been shown by the  

plaintiff  as  to  why  these  documents  were  not  placed  on  

record by the plaintiff during the entire trial.  Unfortunately,  

the  High  Court  taking  note  of  the  words  “at  any  stage”  

occurring in Order XVIII Rule 17 casually set aside the order  

of the trial Court, allowed those applications and permitted  

the plaintiff to place on record certain bills and also granted  

permission to recall PW-1 to prove those bills.  Though power  

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under  Section  151 can  be  exercised  if  ends  of  justice  so  

warrant and to prevent abuse of process of the court and  

Court  can  exercise  its  discretion  to  permit  reopening  of  

evidence  or  recalling  of  witness  for  further  

examination/cross-examination  after  evidence  led  by  the  

parties,  in the light of the information as shown in the order  

of the trial Court, namely, those documents were very well  

available throughout the trial, we are of the view that even  

by exercise of Section 151 of CPC, the plaintiff  cannot be  

permitted.   

12) After  change  of  various  provisions  by  way  of  

amendment in the CPC, it is desirable that the recording of  

evidence should be continuous and followed by arguments  

and decision thereon within a reasonable time.  This Court  

has repeatedly held that courts should constantly endeavour  

to follow such a time schedule.  If the same is not followed,  

the  purpose  of  amending  several  provisions  in  the  Code  

would get defeated.  In fact, applications for adjournments,  

reopening and recalling are interim measures, could be as  

far  as  possible  avoided  and  only  in  compelling  and  

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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 plaintiff  

has not placed those bills on record.  It further shows that  

final  arguments  were  heard  on  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.

13) Under these circumstances, the impugned order of the  

High Court dated 23.08.2011 in C.M. No. 707 of 2010 (Civil  

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Revision No. 707 of 2010) is set aside and the order dated  

25.02.2010 of the trial Court is restored.  

14) The appeal is allowed with no order as to costs.     

...…………………………………J.     (P. SATHASIVAM)  

...…………………………………J.         (JAGDISH SINGH KHEHAR)  

NEW DELHI; FEBRUARY 22, 2013.

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