Holding

An application must be correctly framed and cite the appropriate provision; a mis‑nominated provision cannot be ignored, and the party may file a fresh application under the proper rule.

Summary

In an election petition, the appellant sought to recall witness PW‑31 Surinder Pal Singh to confront him with a judgment from another case. The application was filed under Order XVI Rule 3 of the Code of Civil Procedure, 1908, which deals with tender of expenses to witnesses, and was rejected by the Punjab and Haryana High Court. The appellant contended that the substance of the application fell under Order XVIII Rule 17, which permits recall of a witness, and therefore the prayer should have been granted. The Supreme Court held that while the substance of an application is paramount, parties are obligated to correctly frame their applications and cite the appropriate statutory provisions; a mis‑labelled application cannot be treated as if the correct provision were cited. Consequently, the Court allowed the appeal in part, granting the appellant liberty to file a fresh application under Order XVIII Rule 17, and made no order as to costs.

Issues considered

The applicability of Order XVI Rule 3 versus Order XVIII Rule 17 for a prayer to recall a witness.
Whether a mis‑nominated statutory provision in an application can be ignored in favor of the substantive content.
Whether a witness can be recalled to be confronted with a judgment passed in a different case.

Legislation cited

Code of Civil Procedure, 1908s. Order XVIII Rule 17, s. Order XVI Rule 3

Subjects

election petitionrecall of witnessCPC Order XVI Rule 3CPC Order XVIII Rule 17procedural misnomerwitness examinationSupreme Court of India

Judgment

JEET MOHINDER SINGH A
v.
HARMINDER SINGH AND ANR.

JULY 26, 2004

[ARJJJT PASAYAT AND C.K. THAKKER, JJ.] B
Code of Civil Procedure, I 908:

Order XVIII, Rule I 7-Application to recall a witness styled as under
Order XVI, Rule 3-Maintainability of-Held, though nomenclature of an C
application is not material, and the substance is to be seen, yet duty is cast
on parties to properly frame applications and quote provisions of law
applicable with nomenclature in clear and precise manner-Liberty granted
to file a fresh application in terms of Order XVIII, Rule I 7-Practice and
Procedure.
D
In an election petition, an application was filed under Order XVI,
Rule 3 of the Code of Civil Procedure, 1908 with a prayer to recall a
particular witness for the purpose of confronting him with a judgment
passed in a different case. The High Court rejected the application
holding that a witness could not be confronted with the judgment in E
which there was reference to a previous statement.

In the appeal before this court, it was contended for the appellant
that though the application was styled as one under Order XVI, Rule
3, but in essence it was a petition under Order XVII, Rule 17 CPC, F
and, therefore, the prayer should have been accepted.

Allowing the appeal in part, the Court

HELD : Though nomenclature of an application is really not
material and the substance is to be seen, yet it cannot be said that a G
party shall be permitted to indicate any provision and thereafter
contend that the nomenclature should be ignored. Duty is cast on the
parties to properly frame their applications and indicate the provisions
of law applicable for making the application. There is a purpose in
indicating the nomenclature in a clear and precise manner. The care H
137
138 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A and caution required to be observed while making an application in
the highest Court of the State are sadly missing in this case. In view
of the accepted position that the application was not filed with care and
caution and did not indicate the relevant provisions of law correctly,
the appellant is permitted to file a fresh application in terms of Order
B XVIII Rule 17 of the Code. (139-G-H; 140-A-B, E-F]

The Municipal Corporation ofGreater Bombay v. Lala Pane ham and
Ors., AIR (1965) SC I 008, referred to.

C CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4437 of
2004.

From the Judgment and Order dated 23.1.2004 of the Punjab and
Haryana High Court in CM No. 5-E of 2004 in Election Petition No. 14
of 2002.
D
Ranjit Kumar, Raj K. Pandey and Kuldip Singh for the Appellant.

K.G. Bhagat and Debasis Misra for the Respondent.

E The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. : Leave granted.

In an Election petition, an application purported to be in terms of
Order XVI Rule 3 of the Code of Civil Procedure, 1908 (in short the
F 'Code') was filed. The prayer was to recall PW-31-Surinder Pal Singh for
the purpose of confronting him with the judgment already passed in a
different case. The application was rejected by a learned Single Judge of
the Punjab and Haryana High Court on the ground that a witness cannot
be confronted with the judgment in which there is a reference to the
G previous statement. It was further held that it would not be in the interest
of justice to recall a witness again and again.

Mr. Ranjit Kumar, learned senior counsel appearing for the appellant
submitted that though the application was styled as one under Order XVI
H Rule 3, but in essence it was petition under Order XVJIJ Rule 17 of the
J.M. SINGH v. HARMINDER SINGH [PASA YAT, J.] 139

Code and, therefore, the prayer should have been accepted. It was also A
submitted that the view taken by the High Court is not correct in law.

Mr. K.G. Bhagat, learned counsel appearing for respondent No.I
submitted that when a petition was filed under Order XVI Rule 3 of the
Code, it is not open to the appellant to state that the petition was in essence B
different and, therefore, the High Court rightly rejected it. It was, however,
fairly accepted that in a given case the witness can be recalled for the
purpose indicated.

The prayers in the application styled as one under Order XVI Rule
3 of the Code cannot by any stretch of imagination be encompassed by C
the said provision. Order XVI Rule 3 deals with tender of expenses to
witnesses. So far as the Punjab and Haryana High Court is concerned, the
rule reads as follows in view of the amendment :

For Rule 3, substitute -
D
"3. Tender of expenses to witness. - (!) The sum paid into a
Court shall except in the case of a Government servant be tendered
to the person summoned, at the time of serving the summons if
it can be served personally.
E
(2) When the person summoned is a Government servant, the
sum so paid into Court shall be created to Government;

Exception - (1) In cases in which Government servants have to
give evidence at a Court situate not more than five miles from F
their. headquarters, actual traveling expenses incurred by them
may, when the Court considers it necessary, be paid to them.

Exception - (2) A Government servant, whose salary does not
exceed Rs. I 0 per mensem, may receive his expenses from the
Court." G
Though the nomenclature of an application is really not material and
the substance is to be seen, yet it cannot be said that a party shall be
..,. ~ permitted to indicate any provision and thereafter contend that the
nomenclature should be ignored. Duty is cast on the parties to pI'operly H
140 SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.

A frame their applications and indicate the provisions of law applicable for
making the application. Nomenclature may not be normally material. But
there is a purpose in indicating the nomenclature in a clear and precise
manner. Though it is the substance and not the form which is material but
as indicated above, that cannot be a reason to quote an inappropriate
B provision of law and then say "Don't look at the nomenclature". The care
and caution which is required to be taken cannot be diluted to absurd limits.
The care and caution required to be observed while making an application
in the highest Court of the State are sadly missing in this case. Order XVIII
Rule 17 deals with recall and examination of a witness and reads as follows:

C· "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."

D In The Municipal Corporation of Greater Bombay v. Lala Pancham and
Ors., AIR (1965) SC I 008 it was observed that it is not open to a Court
to compel a party to make a particular kind of pleading or to amend his
pleading so also it is beyond its competence to virtually oblige a party to
examine any particular witness.

E In view of the accepted position that the application was not filed with
care and caution and did not indicate the relevant provisions of law
correctly, we think it would be proper to permit the appellant, if he so
chooses, to file a fresh application in terms of Order XVIII Rule 17 of the
Code and if any such application is filed, the same shall be considered on
F its own merits in accordance with law uninfluenced by the rejection of the
application which was styled as one under Order XVI Rule 3 of the Code.
The appeal is allowed to the extent indicated with no order as to costs.

R.P. Appeal allowed.

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