Examination of another plaintiff
jains
(Querist) 12 February 2020
This query is : Resolved
Sir It became necessary to examine another plaintiff also to prove her date of marriage and some other purpose as it is mentioned in the document pertaining to the sale of the plaint schedule which according to the plaintiff a fabricate one. defendant side opposes the examination of the witness as another plaintiff has already been examined for all plaintiff. Is it possible to examine another plaintiff if it become necessary to bring certain evidences or reexamine the same plaintiff who was already examined ?
Dr J C Vashista
(Expert) 12 February 2020
@Jains,
How many more question papers ????
Raj Kumar Makkad
(Expert) 13 February 2020
Order 18 Rule 17 of the Code of Civil Procedure which provides for recall of any witness, at any stage of a suit is reproduced as under:-
"Order 18 Rule 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."
A careful reading of the said provision shows that it only enables the Court to recall a witness in order to clarify any issue or doubt either suo motu or at the request of any party. There is no specific provision in the Code, however, enabling the parties to reopen the evidence for the purpose of further examination-in-chief or cross-examination.
Section 151 of the Code, however, speaks of inherent powers of the Court which is circumscribed by the limitations provided therein:-
"Section 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 be necessary for the ends of justice or to prevent abuse of the process of the Court."
Further Section 138 and Section 154 of the Indian Evidence Act read as under:-
"138. Order of examinations.--Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination.-The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
Section 154. Question by party to his own witness.--[(1)] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.]"
Raj Kumar Makkad
(Expert) 13 February 2020
The inherent power of the Court under Section 151 of the Code of Civil Procedure for reopening of evidence and for recalling witness and the powers of the Court provided under Order 18 Rule 17 of the Code has been considered and explained by the Apex Court in K.K. Velusamy vs. N. Palanisamy2.
Relevant paragraphs 9, 10, 11, 12 and 19 reproduced as under:-
"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 2009 (4) SCC 410]
Raj Kumar Makkad
(Expert) 13 February 2020
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 moto, 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.
Raj Kumar Makkad
(Expert) 13 February 2020
There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening 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 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.
T. Kalaiselvan, Advocate
(Expert) 21 February 2020
You want to examine another witness who has not been cited as witness in the plaint neither the prosecution side have examined the additional witness as a witness from their side.
If the prosecution has not examined them then as a defendant you cannot recall the said person as witness.
However if you want to examine them as a witness from your side then you can file a petition to summon the said witness for examination on the defendant's side.
