IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 330 of 2017
Date of Decision: 21.12.2018
.
Dr. Honey Johar …..Petitioner
Versus
Ramnik Singh Johar …..Respondent
of
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
Yes.
For the Petitioner rt : Mr. Anuj Nag, Advocate.
For the Respondent : Mr. R.G.S Saini, Advocate.
Sandeep Sharma, Judge (oral):
Being aggrieved and dissatisfied with the order
dated 17.7.2017, passed by learned District Judge, Shimla,
District Shimla, H.P., whereby an application having been
filed by the respondent ( hereinafter referred to as the
husband), seeking therein permission to lead additional
evidence, came to be allowed, petitioner (hereinafter
referred to as the wife), has approached this Court in the
instant proceedings, praying therein to set-aside the order,
referred hereinabove.
2. Briefly stated facts, as emerge from the record
are that husband filed divorce petition under Section 13 of
1
Whether the reporters of the local papers may be allowed to see the judgment?
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the Hindu Marriage Act, against the wife in the Court of
learned District Judge, Shimla, District Shimla, H.P. on the
.
ground of cruelty. During the pendency of aforesaid divorce
petition, husband filed an application under Order 18 Rule
17-A read with Section 151 CPC (Annexure P-1), seeking
therein permission of the Court to allow him to lead
of
additional evidence, which may be necessary and just for
the proper adjudication of the case. Husband averred in the
rt
application that on 27.5.2017 wife led her evidence as RW-1
and RW-2, wherein she categorically admitted that her
parents had come to Shimla in the month of July, 2014 and
had a meeting with the family of the husband. Husband
claimed by way of application that he is having recorded
version in the form of audio CD of the entire conversation of
this meeting held in July, 2014, which may be helpful for the
proper adjudication of the dispute/case inter-se parties.
Husband further averred in the application that in para Nos.
6 and 7 of the petition, he has categorically stated that he
was subjected to physical and mental cruelty, which fact
has been further reiterated in para 34 of the replication,
wherein he has categorically averred that he is in possession
of original recording of the conversation, wherein the wife
has stated that she never wanted to marry the husband
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being asthmatic and hunchback. Husband in the application
also stated that bare perusal of recording intended to be
.
adduced on record by way of additional evidence would go
to show that father of the wife has openly threatened him
as well as his family members. Husband further averred in
the application that during cross-examination, RW-1 and
of
RW-2 have admitted the factum of meeting held at Shimla in
July, 2014, but completely stated false facts and as such, in
rt
order to ascertain truth and veracity of the depositions of
wife and her mother, it is very crucial and important to
bring this piece of evidence (Audio CD) on record, to enable
the learned Court to render just and fair decision in the
case.
3. Aforesaid application having been filed by the
husband came to be hotly contested by the wife, who
opposed the application on the ground of inordinate delay.
She stated in the reply that when matter is fixed for
argument such application cannot be allowed and in case
application is allowed at this stage, it would amount to filling
up lacuna.
4. Learned District Judge taking note of the
pleadings adduced on record by the respective parties,
allowed the application vide order dated 17.7.2017 subject
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to cost of Rs.5000/- and also held husband liable to bear the
to and fro expenses of the wife’s witnesses on the
.
production of the proof of the same by them. Vide same
order, learned District Judge, adjourned the matter for
25.7.2017 with the direction to the wife’s witnesses to
remain present for their cross-examination. In the aforesaid
of
background, wife has approached this Court in the instant
proceedings.
5.
rt
Having heard learned counsel representing the
parties and carefully perused the material available on
record vis-a-vis reasoning assigned by the learned District
Judge, while passing impugned order, this Court finds that
application under order 18 Rule 17-A CPC , which otherwise
stands deleted came to be filed on behalf of the husband at
the stage of argument. No doubt Court while exercising
inherent power under Section 151 CPC can allow either of
the party to produce additional document at any time/stage
before rendering its judgment if it deems it necessary for the
proper adjudication of the case, but same time such power is
required to be exercised very cautiously, so that no
prejudice, whatsoever, is caused to the other party.
6. Interestingly, husband in replication to the reply
filed by the wife has stated in para-34 that he is in
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possession of audio recording of wife and her father, wherein
wife has stated that she never wanted to marry husband
.
being asthmatic and hunchback and her father openly
threatened the husband and his family members and as
such, this Court finds considerable force in the arguments of
Mr. Anuj Nag, learned counsel representing the petitioner-
of
wife that once such CD containing audio recording of wife
and her father was in possession of husband then what
prevented him
rtfrom placing it on record before
commencement of trial or at the time of cross-examination
of wife and other witnesses.
7. Careful perusal of the application having been
filed by the husband, seeking therein permission to lead
additional evidence, clearly suggests that by way of
additional evidence husband intended to prove factum with
regard to threats extended to him and his family members
by the father of the wife, which fact was very much in his
knowledge at the time of filing replication. Careful perusal of
cross-examination conducted upon the wife witnesses,
nowhere reveals that suggestion, if any, was ever put to the
wife with regard to existence of audio CD or recording of the
conversation qua the meeting held at Shimla. No doubt, wife
in his examination-in-chief or cross-examination has
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admitted the factum with regard to meeting held at Shimla,
but there appears to be no attempt on the part of the
.
husband to put a suggestion to wife that during meeting at
Shimla he and his family members were threatened and he
was in possession of the CD, which omission on the part of
the husband certainly compels this Court to agree with Mr.
of
Anuj Nag, learned counsel representing the petitioner-wife
that application having been filed by the husband at the
rt
time of arguments is an afterthought merely to fill up the
lacuna. Husband by way of placing audio CD on record
wants to prove misbehave of father of wife and statement
given by wife at one point of time, but interestingly, no such
suggestion came to be put to her in her cross-examination,
rather such suggestion came to be put to RW-2 in her cross-
examination I.e. mother of the wife, which in my mind could
not be of any help.
8. Leaving everything aside, once pleadings
adduced on record by the husband itself suggest that audio
CD sought to be produced on record by way of additional
evidence was very much in existence before
commencement of trial or cross-examination of wife or her
family member, learned Court below ought not to have
allowed the application having been filed by the husband,
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seeking therein permission to lead additional evidence that
too at the stage of arguments because it would amount to
.
filling up of lacuna.
9. Basic purpose of Rule 17 is to enable the Court to
clarify any position or doubt. While exercising power Under
Order 18 Rule 17-A CPC, Court may, either suo motu or on
of
the request of any party, recall any witness at any stage in
this regard. No doubt, power can be exercised at any stage,
rt
once the Court recalls the witness for the purpose of any
such clarification, the court may permit the parties to assist
the court by examining the witness for the purpose of
clarification required or permitted by the Court. The power
under Rule 17 cannot be stretched any further, however said
power cannot be invoked to fill up omission in the evidence
already led by a witness.
10. In this regard, reliance is placed upon the
judgment rendered by Hon’ble Apex Court in Ram Rati
versus Mange Ram(Dead) through legal
representatives and others, 2016(11) Supreme Court
Cases 296, wherein it has been held as under:-
” 11. The respondent filed the application
under Rule 17 read with Section 151 CPC
invoking the inherent powers to the court to
make orders for the ends of justice or to
prevent abuse of the process of the Court. The25/12/2018 20:37:08 :::HCHP
8basic purpose of Rule 17 is to enable the court
to clarify any position or doubt, and the court
may, either such motu or on the request of any
party, recall any witness at any stage in that
regard. This power can be exercised at any.
stage of the suit. No doubt, once the court
recalls the witness for the purpose of any such
clarification, the court may permit the parties
to assist the court by examining the witness forthe purpose of clarification required or
permitted by the court. The Power under Rule
17 cannot be stretched any further. The said
power cannot be invoked to fill up omission inof
the evidence already led by a witness. It cannot
also be used for the purpose of filling up a
lacuna in the evidence. ” No prejudice is caused
to either party ” is also not a permissible
ground to invoke Rule 17. No doubt, it is a
rt
discretionary power of the Court but to be used
only sparingly, and in case, the court decides toinvoke the provision, it should also see that the
trial is not unnecessarily protracted on that
ground.”
11.
It is quite apparent from the aforesaid exposition
of law that though it is discretionary power of Court to allow
parties to adduce on record additional evidence at any stage
of the trial, but such power is required to be used sparingly
so that it is not abused. The Hon’ble Apex Court has
specifically held that in case Court decides to invoke this
provision, it should see that the trial is not unnecessarily
protracted on that ground. In the judgment(supra) Hon’ble
Apex Court has held that ” no prejudice is caused to either
party is also not a permissible ground to invoke Rule 17 and
as such, there is no force in the arguments of learned
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counsel representing the husband that no prejudice would
be caused in case order passed by the District Judge is
.
allowed to sustain, rather it would help to ascertain the
truth. This Court finds from the record that matter is
repeatedly being adjourned on one pretext or the other on
the request of learned counsel representing the parties.
of
Hence, this Court having taken note of the fact that since
factum with regard to existence of audio CD sought to be
rt
adduced on record as additional evidence was very much in
the knowledge of the husband before commencement of
trial and at the time of leading evidence, has no hesitation
to conclude that application filed under Order 18 Rule 17-A
CPC is nothing, but an attempt to protract the trial and as
such, same deserves to be dismissed.
12. Consequently, in view of the discussion made
hereinabove, the present petition is allowed and impugned
order dated 17.07.2017, passed by the learned Court below
is quashed and set-aside.
13. The parties through their respective counsel(s)
are directed to appear before the learned Court below on
4.01.2019, to enable it to proceed with the matter. Having
taken note of the fact that the matter is hanging fire since
2014, this Court hopes and trust that learned Court below
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shall conclude the case expeditiously, preferably on or
before 15th March, 2019. Interim order dated 28.07.2017 is
.
vacated.
14. Any observations made hereinabove shall not be
construed to be a reflection on the merits of the case and
shall remain confined to the disposal of this petition alone.
of
(Sandeep Sharma),
rt Judge
21st December,2018
(shankar)
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