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Dr. Honey Johar vs Ramnik Singh Johar on 21 December, 2018

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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2

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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3

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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4

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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5

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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6

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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7

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. The

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8

basic 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 for

the 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 in

of
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 to

invoke 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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9

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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10

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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