[S.151 CPC] Inherent Power Of Court To Do Justice Not Affected By Its Power To Recall Witnesses, Elicit Clarifications: J&K High Court

Citing “Ram Rati Vs Mange Ram (Dead) Through Legal Representatives & Ors” Justice Javed Iqbal Wani clarified,

“..The rigour under Order 18 Rule 17 would not affect the inherent power of the Court to pass required orders for ends of justice to reopen the evidence for the purpose of further examination or crossexamination or for production of fresh evidence authorizing the Court to exercise power at any stage of the suit, even after closure of evidence”

The case involved a suit for mandatory injunction filed by Col (Retd) Vijay Singh against Col (Retd) Dalbir Singh (since deceased) for possession of land. After the initial rounds of evidence exchange, Col Dalbir Singh's legal heirs, Vineeta Jamwal and Purnima Pathania, were brought on record. The trial court allowed the petitioners to file fresh affidavits with new witnesses.

The petitioners then produced witnesses and completed their examination-in-chief. However, the plaintiff, Col Vijay Singh, did not cross-examine them due to a pending petition before the High Court challenging the order permitting fresh witnesses.

After the High Court dismissed the plaintiff's petition, he filed an application before the trial court seeking permission to cross-examine the defendants' witnesses. The trial court allowed the application, leading the petitioners to challenge this order in the High Court.

The petitioners argued that the trial court had erred in allowing the cross-examination, claiming it violated Order 18 Rule 17 of the Civil Procedure Code (CPC) and relevant case law.

Justice Wani meticulously considering the rival contentions Justice Wani referred to the Ram Rati case which explains the distinction between Order 18 Rule 17 and the inherent powers under Section 151 of the CPC.

While Order 18 Rule 17 allows the court to recall witnesses for clarification, Section 151 grants broader inherent powers to ensure justice. The Court observed that the inherent power can be invoked to reopen evidence for further examination or cross-examination, even after the closure of evidence.

Justice Wani noted that the plaintiffs' initial delay in cross-examination was due to the pendency of their petition challenging the fresh witnesses and emphasized that the proceedings during that period were subject to the outcome of the petition.

Observing that the plaintiffs were not attempting to fill gaps in their evidence but were seeking to exercise their legitimate right to cross-examine Justice Wani recorded,

“Under these circumstances, the plaintiff/respondent 1 herein can never be said to haveintended to fill the lacunas while seeking crossexamination of the witnesses of the defendants-petitioners herein as the said witnesses were never cross-examined. The plaintiff-respondent 1 herein, thus, in law, could not have been divested of his statutory right to cross-examine the said witnesses”.

In alignment with the said observations, the court concluded that the trial court's decision to allow cross-examination advanced the cause of justice and did not violate any legal principles and hence dismissed the petition.

Case Title: Vineeta Jamwal Vs Col (Retd.) Vijay Singh

Citation: 2024 LiveLaw (JKL) 84

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