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2000 DIGILAW 96 (RAJ)

RAM RAI v. SULOCHNA DEVI

2000-01-28

BHAGABATI PRASAD BANERJEE

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Judgment BHAGWATI PRASAD, J. ( 1 ) IN this revision, the petitioner has challenged an order passed by the Trial Cout whereby the application of the petitioner summoning the plaintiffs witnesses for cross-examination has been rejected. ( 2 ) LEARNED Counsel for the petitioner has stated that in the suit, the plaintiff has based her case on one of the grounds that her son needs premises reasonably and bona fidely but this fact has been brought on record by an amendment by the petitioner-defendant that son for whose bona fide necessity, the suit was filed, has gone in adoption and the plaintiff has also acquired another premises. These facts have been brought on record after closure of the evidence of the plaintiff by seeking amendment by the defendant. ( 3 ) THE case of the learned Counsel for the petitioner is that to cross-examine witnesses of the plaintiffs on the freshly added pleadings, they are required to be recalled because burden of proving bona fide necessity is on the plaintiff and unless plaintiff and her witnesses are cross-examined on the aspects of freshly added pleadings, the case of the petitioner-defendant will be seriously jeopardised. ( 4 ) LEARNED Counsel for the petitioner places reliance on the following judgments in support of his contentions-pankaja Padhan and Anr. v. Ranjit padhan. In this case, the Court was pleased to summon witnesses of the plaintiff after a new defendant was added. The case of the learned Counsel for the petitioner is that in its case, new facts have been brought in and they tantamount to the same situation. Smt. Kulsumunnisa v. Smt. Ahmadi begum. In this case, certain material questions were not put by the Lawyer to the witnesses, which were germane from the pleadings as existed on the day when the witnesses were examined. Madhubhai Amthalal v. Amthalal manalal and Ors. In this case, the Bombay high Court has held that the Trial court has wide discretion. Such discretion should be exercised when there is ambiguity in the evidence or there has been any omission in the evidence. This has also been observed by the Bombay high Court that such powers should be exercised with the greatest of caution. Chairman, Notified Area Council bhanjanagar and Anr. v. Kudim Lingaraju patra. In this case, the Orissa high Court considered the question where Advocate for the party had failed to ask certain important questions. This has also been observed by the Bombay high Court that such powers should be exercised with the greatest of caution. Chairman, Notified Area Council bhanjanagar and Anr. v. Kudim Lingaraju patra. In this case, the Orissa high Court considered the question where Advocate for the party had failed to ask certain important questions. In that background, the Court permitted recalling of the witnesses under Section 151, C. P. C. Jodhpur Gums and Chemicals Pvt. Ltd. v. Punjab National Bank and Ors. In this case, on the day when the witnesses of the party were examined, advocate for the parties was not there and in that background, those witnesses were ordered to be recalled. ( 5 ) PER contra, learned Counsel for the respondent-plaintiff has urged that none of the cases cited by the learned Counsel for the petitioner-defendant are applicable to the facts of the present case. Instant case is of an amendment in the pleadings by the defendant who always have the tendency to delay the trial. Asking for amendment under the guise that he had known the facts subsequently, the same amounts to delaying the proceedings. The application of the petitioner is nothing but a device to delay the proceedings as far as possible. He has further urged that cases relied upon by the learned Counsel for the petitioner do not relate to any situation where the pleadings were amended, so much so, the Bombay high Court has observed in the case of madhubhai Amthalal (supra), that discretion to call witnesses should be exercised with the greatest of the caution. ( 6 ) IN the instant case, learned Counsel for the petitioner has not been able to make out even a case of great caution, the question of greatest caution is not involved at all. He has placed reliance on Ram Sahai v. Goberdan, wherein this Court has interpreted the powers of the Court under Order 18 Rule 17, c. P. C. This Court has held that Order 18 Rule 17 certainly authorises a Court to recall a witness, but for the purposes of putting any question which the Court itself might think necessary. It does not authorise a party to have a witness, whom he has already cross-examined, recalled for the purpose of further cross-examination. ( 7 ) I have heard learned Counsel for the parties, perused the record and given my thoughtful consideration. It does not authorise a party to have a witness, whom he has already cross-examined, recalled for the purpose of further cross-examination. ( 7 ) I have heard learned Counsel for the parties, perused the record and given my thoughtful consideration. ( 8 ) SUFFICE it to say that case law cited and relied upon by the learned Counsel for the petitioner has no bearing in the facts and circumstances of the present case because calling of witnesses relied upon by the learned counsel for the petitioner relates to a situation where defendant sought an amendment and brought such facts on record which the defendant could have otherwise brought on record earlier had have taken due diligence. In this perspective, if the defendant makes prayer to the Court for recalling witnesses, then order 18 Rule 17, C. P. C. cannot come for the rescue of the petitioner because it has been held by this Court in the case of Ram Sahai (supra), that Order 18 Rule 17, C. P. C. empowers the Court but the parties have not been given a liberty to recall witnesses. In this background, the power vests in the Court. If the trial Court in its discretion has not felt it necessary for recalling witnesses, as requested by the petitioner, then this Court has to see whether powers conferred under Section 151, c. P. C. have been denied to the petitioner rightly or wrongly. As new facts have been brought in by the petitioner-defendant, the petitioner-defendant will first have to establish them by his evidence. Permitting witnesses of the plaintiff to be recalled is giving a lever. Petitioner cannot be permitted to prove alleged facts by evidence of other parties. The other parties may in its wisdom deny the same. In this backgrond, the order impugned will not occasion any failure of justice, if permitting to be stand. No jurisdictional error has been committed by the Trial Court. The revision petition having no force is dismissed. Revision dismissed. .