M/S.BAGAI CONSTRUCTION THR. ITS PROPRIETOR MR. LALIT BAGAIversusM/S. GUPTA BUILDING MATERIAL STORE

                        [2013] 2 S.C.R. 116

A MIS.BAGAI CONSTRUCTION THR. ITS PROPRIETOR MR.
                   LAUT BAGAI
                                  v.
            MIS. GUPTA BUILDING MATERIAL STORE
                 (Civil Appeal No. 1787 of 2013)
B                      FEBRUARY 22, 2013.
    [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]

        Code of Civil Procedure, 1908- Or. 7 r. 14 rlw s. 151 and
c Or. 18 r. 17 rlw. s. 151 - Applications under - By the plaintiff -
  To place documents on record and to recall witness to prove
  those documents - Filed after the arguments were over and
  case was adjourned for judgment - Held: The power under
  Order 18 r. 17 has to be sparingly exercised and not as a
0 general rule to overcome lacunae in the plaint, pleadings and
  evidence - Therefore the applications are liable to be rejected
  - The plaintiff filed the applications to improve its case - The
  plaintiff did not file those documents at earlier stage despite
  the same were available with him throughout the trial -
E Therefore, the applications cannot be allowed even by
  exercise of jurisdiction uls. 151.
       Respondent filed a recovery suit against the
  appellant. After the arguments were concluded and the
  case was adjourned for judgment, he filed two
F applications ulOr. 7 r. 14 r/w s. 151 CPC and u/Or. 18 r.
  17 r/w s. 151 CPC for production of documents (Bills) and
  recalling the witness to prove those documents
  respectively. Trial court dismissed the applications. High
  Court, in revision, set aside the order of trial court and
G allowed the applications. Hence the present appeal.
        Allowing the appeal, the Court
        HELD: 1. The power under the provisions of Order
    18 Rule 17 CPC is to be sparingly exercised and in
H                                 116
   BAGAI CONSTR. THR. ITS PROP. LAUT BAGAI v.            117
        GUPTA BUILDING MATERIAL STORE
appropriate cases and not as a general rule merely on the       A
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. 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        B
application filed by any of the parties to the suit, but 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. Hence the application filed      c
by the plaintiff has to be rejected. [Paras 8 and 9] [122-E-
G; 123-8]
    Vadiraj Naggappa Vernekar (dead) through LRs. vs. ·
SharadchandraPrabhakar Gogate (2009) 4 SCC 410: 2009
(2) SCR 1071 - relied on.                                       D
      2. The plaintiff has filed the 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 E
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 F
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. The
High Court taking note of the words "at any stage" G
occurring in Order 18 Rule 17 CPC 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 u/s. 151 CPC can be exercised if H
    118       SUPREME COURT REPORTS           (2013] 2 S.C.R.


A 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 fact that those
B documents were very well available throughout the trial,
  even by exercise of Section 151 of CPC, the plaintiff
  cannot be permitted. [Paras 11 and 12] [124-F-H; 125-A-
  E-F]

C       K.K. Ve/usamy vs. N. Palanisamy (2011) 11 SCC 275:
    2011 (4) SCR 31 - referred to.

       3. 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
D arguments and decision thereon within a reasonable
   time. The courts should constantly endeavour to follow
   such a time schedule. If the same is not followed, the
   purpose of amending several provisions in CPC would
   get defeated. In fact, applications for adjournments,
E 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. [Para 12] [125-8-D]

                        Case Law Reference:
F
          2009 (2) SCR 1071     Relied on           Para 8
          2011 (4) SCR 31       Referred to         Para 9
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G 1787 of 2013.

        From the Judgment & Order dated 23.08.2011 of the High
    Court of Delhi at New Delhi in CM(M) No. 707 of 2010.

      Siddharth Yadav, Praveen Swarup, K.B. Thakur, Wasim
H Ashraf for the Appellant.
   BAGAI CONSTR. THR. ITS PROP. LAUT BAGAI v.               119
        GUPTA BUILDING MATERIAL STORE
      Jitendra Jain, Ajay jain, Ravi Shankar Garg, Ram Pratap      A
for the Respondent.

    The Judgment of the Court was delivered by

    P. SATHASIVAM, J. 1. Leave granted.
                                                                   B
     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    c
dated 25.02.2010 of the Additional District Judge, Delhi.
    3. Brief facts:
      (a) The appellant is a proprietorship concern dealing in
interior decoration and construction work and Mr. Lalit Bagai      o
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      E
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 respondentthat after adjusting all the payments being made     F
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   G
outstanding dues along with interest @ 2% 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     H
    120       SUPREME COURT REPORTS              (2013] 2 S.C.R.


A 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
8   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.
c
       (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
D 23.08.2011 allowed the revision and set aside 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
E 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
F 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
G 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/-

          6. In order to find out the acceptability of the impugned
H
  BAGAI CONSTR. THR. ITS PROP. LAUT BAGAI v.      121
GUPTA BUILDING MATERIAL STORE [P. SATHASIVAM, J.]
order or not, it is useful to re'fer the relevant provisions of the   A
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        B
     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.        c
     (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
                                                                      0
     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.
                                                                      E
     (4) Nothing in this rule shall apply to document produced
     for the cross examination of the plaintiffs witnesses, or,
     handed over to a witness merely to refresh his memory."
     Order XVIII Rule 17
                                                                      F
    "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."
                                                                      G
    Section 151 of CPC
    "151. Saving of inherent powers of Court.- Nothing in
    this Code shall be deemed to limit or otherwise affect the
    in\'\etent power of the Court to make such orders as may
    be necessary for the ends of justice or to prevent abuse          H
    122        SUPREME COURT REPORTS                 [2013] 2 S.C.R.

A         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.
B        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
c          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
D         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
E         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
F
        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
G       during the course of his examination.
        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
H       within the court's discretion, if it deems fit, to allow such
  SAGAi CONSTR. THR. ITS PROP. LAUT SAGAi v.      123
GUPTA BUILDING MATERIAL STORE [P. SATHASIVAM, J.]

    an application. In the present appeal, no such case has          A
    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
                                                                     8
have to be rejected. However, learned counsel for the
respondent by placing heavy reliance on a subsequent
decision, namely, K.K. Ve/usamy vs. N. Pa/anisamy, (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          C·
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.
     1O. In Velusamy (supra) even after considering the              0
principles laid down in Vadiraj Naggappa Vemekar (supra)
and taking note of Section 151 CPC, this Court concluded that
in the interests of justice and to prevent 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           E
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              F
    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,      G
    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
                                                                     H
    124       SUPREME COURT REPORTS                   (2013] 2 S.C.R.


A         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
B         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.
c         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
    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
0
    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
E   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 l;:icunae
    in its pleadings and evidence led by him. As rightly observed
    by the trial Court, there is no acceptable reason or cause which
F   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
G   permitted the plaintiff to place on record certain bills and also
    granted permission to recall PW-1 to prove those bills. Though
    power 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
H   evidence or recalling of witness for further examination/cross-
  BAGAI CONSTR. THR. ITS PROP. LAUT BAGAI v.      125
GUPTA BUILDING MATERIAL STORE [P. SATHASIVAM, J.)

examination after evidence led by the parties, in the light of       A
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 B
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 C
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 acceptable reasons, those
applications are to be considered. We are satisfied that the D
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 E
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
                                                                      F
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       G
High Court dated 23.08.2011 in C.M. No. 707 of 2010 (Civil
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.
K.K.T.                                          Appeal allowed.     H