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2008 DIGILAW 324 (PNJ)

Om Parkash v. Gurmit Singh And Surinder Singh

2008-02-05

RANJIT SINGH

body2008
Judgment Ranjit Singh, J. 1. This order will dispose of Civil Revision Nos. 5775 of 2006 (Om Parkash v. Gurmit Singh) and 5776 of 2006 (Om Parkash v. Surinder Singh) as the same have arisen out of the common impugned order dated 5.10.2006. The facts are being taken from Civil Revision No. 5775 of 2006. 2. The petitioner filed a suit for recovery of an amount from the respondent on the basis of a pronote and a receipt dated 17.5.2003. The suit is being contested by the respondent and he has filed a written statement. On an application filed by the respondent, an additional issue was framed by an order dated 31.8.2006, which is as under: Whether the plaintiff is a money lender and does not possess a valid money lending licence ? If so, its effect ? OPD 3. Thereafter, application was moved by the respondent for recall of the petitioner for further cross-examination to lead evidence on the additional issue framed qua money lending. This application was hotly contested by the petitioner by urging that the respondent be called upon to specify the evidence, which he has already adduced on the issue, and that the petitioner can not be compelled to adduce evidence against himself. Further prayer is that the petitioner should be asked to come along with his account books so that it can be shown that he is a money lender. 4. The counsel for the respondent seeks support from some of the judgments to show that where an additional issue is framed, the permission is to be granted to summon witnesses. In this regard, he has made reference to M/s National Agro Chemical Industries Ltd. v. National Research Development Corporation 2006 (3) CCC 493. 5. While allowing the prayer of the respondent, the trial Court has noticed that after framing of the additional issue, the copies of the earlier judgments have been appended and only mode to establish this is to put the same to the witness i.e. the petitioner- plaintiff. It has also been noticed that it may otherwise be a duty of the Court to call upon the plaintiff to come up with the relevant record and in case he did not do so, then necessary inference could be drawn as required under Section 114 of the Indian Evidence Act. It has also been noticed that it may otherwise be a duty of the Court to call upon the plaintiff to come up with the relevant record and in case he did not do so, then necessary inference could be drawn as required under Section 114 of the Indian Evidence Act. It is in this background that the prayer of the respondent has been allowed and the petitioner-plaintiff is ordered to be recalled for further cross-examination after framing of an additional issue. To safeguard the interest of the petitioner, it is specifically directed by the trial Court that the ambit of further cross-examination shall be confined to the aspect arising out of new issue and would not be permitted to go beyond that aspect. Only one opportunity has been granted to the respondent-plaintiff to cross-examine the petitioner, failing which it shall be deemed that the counsel would not wish to cross-examine the witness. 6. While assailing the order passed by the trial court, the learned Counsel appearing for the petitioner would contend that the recall of the petitioner has been wrongly directed. The counsel has made reference to the case of Dr. N.K. Bhatia v. Maharawal Khewaji Religious and Charitable Trust 2006 (2) RCR (Civil) 348. In this case, the court has ruled about the burden of proof, which would lie on the party claiming issue and on whose pleadings the issue is framed. The burden of proof has rightly been placed on the respondent-defendant in this case. No issue regarding burden of proof arises here. It is to discharge that burden that prayer is made for recall of the petitioner. Similarly, the reference by the learned Counsel to the case of Jagat Singh v. Gurminder Singh and Anr. 1970 P.L.J. 534 also relates to a burden of proof. It was further observed in this case that where it is contended that burden of particular issue was on the plaintiff, the defendant could not be called upon to lead evidence, before the plaintiff had produced fresh evidence on the issue of burden, which was upon them. Here the petitioner-plaintiff has not been asked to lead any evidence. He has only been recalled for the purpose of being further questioned on the additional issue by way of cross-examination. Accordingly, this judgment would not come to the rescue of the petitioner. 7. Here the petitioner-plaintiff has not been asked to lead any evidence. He has only been recalled for the purpose of being further questioned on the additional issue by way of cross-examination. Accordingly, this judgment would not come to the rescue of the petitioner. 7. On the other hand, learned Counsel appearing for the respondent has referred to Muthukaruppan @ Velayutham v. Suresh @ Muthukaruppan 2000 (3) All India Land Laws Reporter 531. In this case, the counsel had earlier cross-examined the witness who has withdrawn from the case. The new counsel found that some vital questions were left unasked. It was observed by this Court that permission to recall the witness by exercising discretion by the Court in favour of the respondent can not be held as capricious or arbitrary. In M/s National Agro-Chemical Industries Ltd. v. National Research Development Corporation 2006 (3) Civil Court Cases 493, a Division Bench of Delhi High court has held that Court at any stage of the suit may recall a witness who has been examined. 8. Relevant observations are as under: As a matter of fact, the harmonious construction of procedural rules leaves no doubt that Court at any stage of a suit may recall any witness who has been examined and we may say that the examination includes cross-examination as well. The aforesaid rule postulates that when a witness has been examined, the Court at any stage of the suit may recall the said witness but that final stage of examination (which includes complete cross- examination) is under a question mark in this case. Therefore, in such cases, in our view, the Court will have the power to order for recall of such a witness for the purpose of examination which includes cross-examination, when it is brought to the notice of Court. In the case before hand, we are examining whether the witness had been examined in the real sense of term i.e. whether PW-1 was completely cross-examined. 9. In Rishi Kumar v. Suresh Chand 1992 (1) PLR 254, this Court has viewed that where defendants application for re settlement of the issue is allowed, then it gives a fresh right to the petitioner to file again a list of witnesses fresh. 9. In Rishi Kumar v. Suresh Chand 1992 (1) PLR 254, this Court has viewed that where defendants application for re settlement of the issue is allowed, then it gives a fresh right to the petitioner to file again a list of witnesses fresh. Similarly, in the case of S.S.S. Durai Pandian v. S.A. Samuthira Pandian AIR 1998 Madras 323, it has been held that recalling plaintiff for re-cross examination can be exercised by the Court on an application of the defendant and would not be restricted only on its own motion. Accordingly, I am of the view that discretion has been rightly exercised by the trial Court to direct recall of the plaintiff for the purpose of limitation cross-examination. This discretion is available with the trial Court and appears to have been justifiable exercised. Counsel for the petitioner has not been able to point out anything, which may call for interference in the impugned order. 10. Both the revision petitions are accordingly dismissed.