Research › Browse › Judgment

Rajasthan High Court · body

1998 DIGILAW 1218 (RAJ)

Prahlad Das v. Karunaram

1998-11-18

MOHD.YAMIN

body1998
Honble YAMIN, J.–This is a revision against the order of learned District Judge, Jodhpur dated 2.5.97 by which he dismissed the application of the petitioner under Order 18 Rule 17 CPC and refused to recall the witnesses. (2). I have heard the learned counsel for both the parties at length. (3). An application under Section 372 of the Indian Succession Act was submi- tted by Karunaram to obtain succession certificate in relation to fixed deposit of Rs. 8,05,075.16 which was lying in a bank in the name of Kushaldas. The petitioner claimed himself to be the chela of Kushaldas who died on 24.10.88 at Barmer. Its general notice was published. Prahlad Das petitioner came to know about these proceedings on 23.4.91 when the notice was published in Rajasthan Patrika and then he engaged Shri Gopal Raj Singhvi as his advocate. Then he was summoned as a witness in August, 1995. He went to Smt. Sushila and to his advocate then he came to know that his right to defend was closed on 31.7.93 as no reply was filed. He then moved an application under Section 151 CPC and prayed to submit his written statement but the same was dismissed on 15.3.96. By that time Karunaram and his two witnesses had been examined before the learned District Judge. Then he moved an application under Order 18 Rule 17 and 17-A CPC to the effect that since no exparte proceedings were taken against him, Karunaram and his witnesses may be recalled and petitioner Prahlad Das may be given an opportunity to cross examine these witnesses. The application has been dismissed by the learned District Judge. Hence this revision. (4). Learned counsel for the petitioner submitted that it was the advocate of the petitioner who did not pursue his case properly and the petitioner should not suffer on account of lapse of his counsel. He also submitted that the trial Court had simply closed the defence of the petitioner and no exparte order was passed, there- fore, the petitioner could have very well cross examined the witnesses and, therefore, he has prayed that the witnesses of Karunaram and Karunaram himself may be recalled. He also submitted that the trial Court had simply closed the defence of the petitioner and no exparte order was passed, there- fore, the petitioner could have very well cross examined the witnesses and, therefore, he has prayed that the witnesses of Karunaram and Karunaram himself may be recalled. He submitted that the trial court has committed error of jurisdiction in disallowing the application because Prahlad Das was an illiterate, old and a sick person whose counsel had not taken interest in the proceedings and the learned District Judge not only dismissed his application but seddled him with cost of Rs. 250/-. He also submitted that the settled principle of law is that a party should be allowed to put his case before the court before arriving to a correct conclusion and that the amount runs into lacs, therefore, the witnesses should have been allowed to be recalled by the learned District Judge. (5). On the other hand, learned counsel for the respondents have repelled all these arguments. (6). So far as question of recalling of witnesses is concerned, it is the discretion of the Court given to it under Order 18 Rule 17 CPC which provides that 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. The word used ``may indicates that the discretion has been given to the trial Court. The word ``may used does not mean ``shall and the Court was not bound to recall the witnesses whom the petitioner wanted to recall. The case of the petitioner himself is that he had engaged a counsel some time in the year 1991 but he did not appear and ultimately on 31.7.93 the defence of the petitioner was closed. There is nothing on record as to when did the petitioner con- tact his advocate in between 29.4.91 to August, 1995. it is found from the record that when Karunaram and his two witnesses were examined by the learned District Judge, proper opportunities were given to the opposite parties who were present to cross examine the witnesses. But when the petitioner or his counsel were not present they did not and could not have cross examined these witnesses. it is found from the record that when Karunaram and his two witnesses were examined by the learned District Judge, proper opportunities were given to the opposite parties who were present to cross examine the witnesses. But when the petitioner or his counsel were not present they did not and could not have cross examined these witnesses. It was submitted that a formal order of exparte proceedings was not passed against the petitioner. In my view it hardly matters. Now to say that petitions may be given opportunity to cross examine the witnesses after recalling them will amount injustice to other party. The law helps those who do not sleep. The petitioner has been sleeping over the matter for the reasons best known to him. (7). learned counsel for the petitioner cited Shyam Das and another vs. Praveen Kumar and another (1), in which the appeal remained pending in due course for 9 years and there was no negligence on the part of the applicant. It was observed that the applicant should not suffer on account of inaction or negligence on the part of his counsel and the restoration application was allowed. The facts of the cited case are different and it is not a case of restoration of appeal or a suit but recalling of the witnesses which is a discretion of the learned trial Judge. He also cited Rafiq and another vs. Munshilal and another (2), in which appeal was dismissed for default of the appellants counsel and it was observed that the party should not suffer for misdemeanour or inaction of his counsel. This citation also does not help the petitioner as the present one is not a case of dismissal of an appeal or a suit instead the petitioner wants that the witnesses of Karunaram and Karunaram himself be resummoned for cross examination. (8). Learned counsel for the respondents cited Dwarkabai vs. Ukharda Ganpat (3), in which Section 137 of the Indian Evidence Act was considered. Practice of pleader or party being absent was considered and it was held that the Court is not bound to wait for any length of time and thus waste public time if the pleaders do not turn up in Court at the right moment to cross examine the opposite partys witnesses. Practice of pleader or party being absent was considered and it was held that the Court is not bound to wait for any length of time and thus waste public time if the pleaders do not turn up in Court at the right moment to cross examine the opposite partys witnesses. This appears to be the correct interpretation of Section 137 of Indian Evidence Act and when the petitioner missed the bus for reasons best known to him. He cannot be allowed not to recall the witnesses and Karunaram for cross examination. I am of a very clear view in this case that the learned District Judge has correctly exercised his jurisdiction by disallowing the application. He has not committed any illegality or error of jurisdiction. (9). Consequently, I do not find any reason to interfere in the order of the lear- ned District Judge. The revision petition is hereby dismissed. No orders as to costs.