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2008 DIGILAW 3845 (MAD)

T. v. Sachithanandam VS T. V. Thirunavukarasu & Others

2008-10-22

M.VENUGOPAL

body2008
Judgment :- The revision petitioner/plaintiff has filed the above civil revision petition aggrieved against the order passed in I.A.No.1144 of 2008 in O.S.No.114 of 2004 dated 110. 2008 by the District Munsif, Dharapuram in dismissing the application filed under Order 18 Rule 17 CPC to recall P.W.1 for the purpose of chief examination. The trial Court, while passing the order in I.A.No.1144 of 2008, has inter alia observed that the death certificate can be marked with the consent of other side advocates and the reason for recalling P.W.1 for the purpose of examination is not acceptable and the said application has been filed only to protract the proceedings and resultantly dismissed the application. 2. Before the trial Court, the petitioner/plaintiff has filed I.A.No.1144 of 2008 praying permission of the Court below to recall P.W.1 for the purpose of proving the death certificate of one Perumal,S/o Palani. The said Perumal is the first witness in the Will dated 17. 1974 executed by the plaintiffs father Varadhachalam. In the counter filed by the third respondent/3rd defendant before the trial Court, it is, inter alia stated that the reasons assigned by the revision petitioner/plaintiff for recalling P.W.1 are not correct and that in the Will dated 17. 1994 executed by the revision petitioners/ plaintiffs father Varadhachalam already one Palani ,S/o Chithan has been examined as P.W.4 and therefore, the reason mentioned in the application seeking permission to recall P.W.1 for the purpose of marking the death certificate of Perumal is not correct. 3. On a perusal of the trial Courts order, it is quite evident that it has come to a conclusion that the said death certificate of Perumal can be marked with the consent of respondent side advocates and that the application has been projecting only with a view to delay the proceedings of the main case. It is true that the discretion under Order 18 Rule 17 of CPC is to be exercised by the Court of law with utmost care and caution and that too in the most peculiar circumstances of the case. However, the power of the Court to recall a witness is discretionary. It is true that the discretion under Order 18 Rule 17 of CPC is to be exercised by the Court of law with utmost care and caution and that too in the most peculiar circumstances of the case. However, the power of the Court to recall a witness is discretionary. Unless and until, the law itself provides some serious consequences on account of any lapse committed, the endeavour of the trial Court must be to ensure that all relevant and the best materials are allowed to be brought on record which could efficaciously, conclusively, completely and finally determine the dispute between the parties. As a matter of fact, the recalling of witness under Order 18 Rule 17 CPC is only an enabling provision for the convenience of the Court. Inasmuch as the revision petitioner/plaintiff has prayed for permission to recall P.W1, the same cannot be flimsy or irrational by taking a liberal view on the facts and circumstances of the case in the considered opinion of this Court and accordingly, this Court allows the revision petition in the interest of justice. 4. In fine, the civil revision petition is allowed and the order passed in I.A.No.1144 of 2008 in O.S.No.114 of 2004 on the file of District Munsif, Dharapuram is hereby set aside. The learned counsel appearing for the petitioner informs the Court that a time frame has been set by the Honourable High Court to dispose of O.S.No.114 of 2004 already and the same has been extended periodically and therefore, this Court directs the parties to co-operate with the conduct of the main case before the trial Court and the trial Court is directed to act accordingly. There will be no order as to costs. Consequently, connected M.P.No.1 of 2008 is closed.