( 2025:HHC:43902 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 377 of 2019 Decided on: 16.12.2025 ____________________________________________________ Nasib Kumar ……….. petitioner Versus Dev Dutt Sharma ……….respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Ms. Devyani Sharma, Sr. Advocate, with Mr. Anirudh Sharma, Advocate. For the respondent : Mr. Sanjeev Kuthiala, Sr. Advocate with Mr. Sana Rana and Ms. Tamana Sharma, Advocate. ____________________________________________________ Bipin Chander Negi, Judge (oral) The present petition has been filed against the impugned order dated 16.01.2019 passed by the learned Senior Civil Judge, Court No.1, Amb, District Una, H.P., whereby a composite application filed under Order VII Rule 14(3) and Order XVI Rule 1 of the Code of Civil Procedure has been allowed. 2. Heard counsel for the parties. Perused the impugned order and the documents appended with the present petition. 3. In the application preferred which has been allowed by the impugned order, the following relief has been sought:- “It is, therefore, prayed that application may kindly be allowed and the leave may kindly be granted for tendering into evidence (i) certified copy of judgment and decree 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 dated 31-5-2016 (ii) certified copy of judgement and decree dated 24-11-2017 (iii) authenticated copy of the statement of accounts pertaining to the loss/damage of goods along with the certificate under section 65 B (4) of the Indian evidence act by summing the witness Yashpaul Chaudhary in the interest of justice”. 4. Insofar as placing on record the certified copies of the judgments in the case at hand are concerned, the same being per-se admissible, no fault can be found with that part of the impugned order permitting the same to be taken on record. The dispute before this Court primarily pertains to Relief No.3, as has been claimed and detailed (supra). 5. From a perusal of the application, it is evident that one Yaspal Chaudhary was examined by the present respondent as PW-4. The said witness it is alleged in the application was examined qua preparation of loss of goods computer statement. The said statement qua loss of goods is a computer print out & hence a statement under Section 65B of the Evidence Act is required to be appended thereto. In his deposition, he got exhibited a document bearing Exhibit PW-4/A. The same is an index with respect to bills Exhibits PW-1 to P-75. In the application, it is averred that bills mentioned at Sr. No. 30 & 34 of Exhibit PW-4/A could not be got exhibited. It is for the aforesaid reason that Yashpal Chaudhary is sought to be re-examined & statement with respect to loss of goods along with the certificate under Section 65(b) of the Evidence Act is sought to be tendered. 3 6. Per contra, it is contended by the learned counsel appearing on behalf of the petitioner that power to recall a witness for the purpose of reexamination is to be exercised sparingly. The same cannot be merely exercised on the ground that no prejudice would be caused to the other party. Other than the aforesaid, the same cannot be invoked to fill lacuna in the evidence. The purpose of re-examination is to clarify doubts or explain ambiguities which may have occurred on account of an answer given in the cross examination which it is submitted is not the case at hand. Besides the aforesaid, it is submitted that tendering of documents which were in the possession of the respondent/plaintiff at a belated stage is not bona fide. No valid and sufficient reasons are forthcoming as to why the said documents could not be placed on record earlier. It is contended that the entire endeavour is to protract the trial. Other than the aforesaid, it is submitted that Yaspal Chaudhary was examined as PW-4. During his examination, he stated that Exhibit PW-4/A has not been prepared on the basis of entries made in a computer and, as such, certification under Section 65(b) of the Evidence Act is not required. 7. On perusal of the statement of PW-4 Yaspal Chaudhary, it is evident that in his examination-in-chief, he categorically stated that Exhibit PW-4/A has been prepared on the basis of bills Exhibits P-1 to P-75. Further in his 4 examination-in-chief, he has submitted that he is maintaining accounts of the present respondent/plaintiff since 2004. Besides the aforesaid he has stated that on the basis of the directions given by the present respondent/plaintiff, he had prepared the damage report. In his cross-examination, he has categorically submitted that the bills Exhibits P-1 to P-75 have not been prepared by him. 8. At this juncture in order to test the acceptability of the impugned order, relevant provisions of CPC and the views expressed by the Apex Court in this regard need to be referred to. In this regard, it would be appropriate to refer to the authoritative pronouncement of the Apex Court in (2013) 14 SCC 1 titled as Bagai Construction through its proprietor Lalit Bagai vs. Gupta Building Materia Store. Relevant extract whereof reads as under:- 7.1 “Order VII Rule 14 14. Production of document on which plaintiff sues or relies.- (1) Where a plaintiff sues upon a document or 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. (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 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. 5 (4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.” Order XVIII Rule 17. 7.2 Order 18 rule 17: “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. 7.3” Section 151 of CPC “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.” 8) Before going into the merits of claim of both the parties, let us recapitulate the views expressed by this Court through recent decisions. 9) 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: (SCC pp 414-15 paras 25, 28-29 & 31) “25. In our view, though the provisions of Order 18 Rule 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 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 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 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 during the course of his examination. 6 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 within the court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.” 10) 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 have to be rejected. However, learned counsel for the respondent by placing heavy reliance on a subsequent decision, namely, K.K. Velusamy vs. N. Palanisamy, (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 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. 11) In Velusamy (supra) even after considering the principles laid down in Vadiraj Naggappa Vernekar (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 and to what extent. 12. 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 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, 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 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 that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up 7 negligence or lacunae, it should be rejected with heavy costs. 13. With these principles, let us consider the merits of the case in hand. 14) 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 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 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 lacunae in its pleadings and evidence led by him. As rightly observed by the trial Court, there is no acceptable reason or cause which 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 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 evidence or recalling of witness for further examination/cross- examination after evidence led by the parties, in the light of 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. 9. The purpose of re-examination can also be discerned from the pronouncement of the Hon’ble Apex Court in (1999) 8 SCC 649 titled as Rammi alias Rameshwar vs. State of M.P.. Relevant para whereof reads as under:-. 16. The very purpose of re-examination is to explain matters which have been brought down in 8 cross-examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus: “138 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. 17. There is an erroneous impression that re- examination should be confined to clarification of ambiguities which have been brought down in cross- examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross- examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination. 18. Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the Court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions. 19. A Public Prosecutor who is attentive during cross- examination cannot but be sensitive to discern which answer in cross-examination requires explanation. An efficient Public Prosecutor would gather up such answers falling from the mouth of a 9 witness during cross-examination and formulate necessary questions to be put in re-examination. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re- examination. 10. Insofar as the respondent/plaintiff seeks to place computer-generated statements of accounts on record by virtue of the application filed under Order 7 Rule 14(3) CPC, suffice it to state that in the case at hand, issues were framed on 06.03.2013. Thereafter, an application was filed under Order 7 Rule 14(3) CPC on 08.10.2015, which was decided on 15.06.2016. Prior to the allowing of the application, four opportunities had been availed of by the present respondent/plaintiff to lead evidence. Subsequent thereto, ample opportunities to lead evidence had been availed by the present respondent/plaintiff. It is in the aforesaid backdrop that the present application had been filed. 11. The statement of accounts pertaining to loss/damage of goods, sought to be tendered now by way of the present application along with the certificate under Section 65B(4) of the Indian Evidence Act, remained in the exclusive possession of the respondent/plaintiff; however, for reasons best known to the respondent/plaintiff, the same were not placed on record earlier. It is evident that the present application filed by the respondent/plaintiff for placing documents on record is not bona fide. The respondent/plaintiff is indulging in protracting tactics. 10 Non-production of the documents earlier, which are now sought to be produced, has not been justified by valid or sufficient reasons. In the aforesaid circumstances, in terms of the law laid down in Bagai Construction (supra), even the power under Section 151 CPC cannot be exercised in favour of the respondent/plaintiff for tendering the documents. 12. The respondent/plaintiff cannot be permitted to file the present application to fill up lacunae in the evidence already led by him. The same cannot be allowed merely on the ground that no prejudice shall be caused to the parties. Moreover, the power to recall a witness can be exercised either to clarify any doubt which the Court may have with regard to the evidence led by the parties or to explain an ambiguity which occurs on account of an answer given in the cross examination. The same is not the case at hand. 13. Besides the aforesaid, the following binding dicta of the Apex Court in Bagai Construction (Supra) has been observed by the trial Court more in its breach rather than in its observance. 15. 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 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 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 11 only in compelling and acceptable reasons, those applications are to be considered. 15. For the aforesaid reasons, the petition is allowed and the impugned order dated 16.01.2019 is quashed and set aside. Pending miscellaneous applications, if any, also stand disposed of. 16. Parties are directed to appear before the trial Court on 14.01.2026. (Bipin Chander Negi) Judge 16th December, 2025 tarun