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2011 DIGILAW 2079 (PAT)

Mohan Sao v. Indrawati Lal

2011-09-27

MUNGESHWAR SAHOO

body2011
ORDER : I have heard Mr. Rabindra Kumar Sinha No.2, the learned counsel appearing on behalf of the petitioner and Mr. Jitendra Kishore Verma, the learned counsel appearing on behalf of the respondent. (2) This application under Article 227 of the Constitution of India has been filed by the plaintiff-petitioner against the ORDER :dated 27.07.2011 passed by Subordinate Judge 3rd Patna in Title Suit No.246 of 2004 whereby the learned Sub Judge, Patna rejected the petition dated 13.07.2011 filed by the petitioner to recall Smt. Indrawati Lal, D.W.5 for her further cross-examination. (3) The learned counsel for the petitioner submitted that at the time of argument of the case, it was felt by the counsel that on some important points, Smt. Indrawati Lal, D.W.5 has not been cross-examined and, therefore, the application was filed but the learned Court below rejected the said application by the impugned ORDER :. The petitioner has prayed to recall the said D.W.5 to cross-examine on particular point mentioned in the application. The learned Court below rejected the same without assigning tenable reasons and, therefore, the learned Court below has not exercised a jurisdiction vested in it by law and, thereby great prejudiced is caused to the petitioner. (4) On the other hand, the learned counsel appearing for the respondent submitted that D.W.5 was earlier examined on Commission for two days at Patna. She resides at New Delhi and after much effort and persuasion, she made herself available for examination and cross-examination. After her full cross-examination, the case of both the parties was closed and thereafter the case was fixed for argument. On the ground that during course of argument, it was felt by the learned counsel for the petitioner that further cross-examination is required to be made is not a ground for recall of the witness. The hearing of the case is going on and, therefore, the learned Court below rightly rejected the application for recall. In such view of the matter, this Court cannot interfere with the impugned ORDER :in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. (5) Admittedly, the suit for specific performance of contract was filed by the plaintiff-petitioner. It is also admitted fact that the evidences of the parties have been closed and argument is going on. In such view of the matter, this Court cannot interfere with the impugned ORDER :in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. (5) Admittedly, the suit for specific performance of contract was filed by the plaintiff-petitioner. It is also admitted fact that the evidences of the parties have been closed and argument is going on. (6) From perusal of the impugned ORDER :, it appears that the learned Court below found that the cross-examination has been made by the sr. counsel on behalf of the plaintiff. After hearing, the case was posted for JUDGMENT : but the petitioner filed application before the District Judge for transfer of the case which was rejected, therefore with a view to linger the matter anyhow the petitioner filed the application for recall of D.W.5. (7) In A.I.R. 2009 (S.C.) 1604, the Hon’ble Supreme Court has held that though the provision of ORDER :18 Rule 17 C.P.C. have been interpreted to include application to be filed by the parties for recall of witness, 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 evidence laid 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. The power under the provisions of ORDER :18 Rule 17 C.P.C. is to be sparingly exercised in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause prejudice to the parties. That is not the scheme or intention of ORDER :18 Rule 17 C.P.C. Here, according to the petitioner, some suggestions could not be given to the D.W.5. It is obvious that only after cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the petitioner to file the application. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. (8) In view of the above settled principles of law, the learned Court below has exercised a discretionary jurisdiction by disallowing the application to recall. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. (8) In view of the above settled principles of law, the learned Court below has exercised a discretionary jurisdiction by disallowing the application to recall. The Court should not exercise the power under ORDER :18 Rule 17 to recall a witness to fill up the lacunae in the evidence of the witnesses which have already been recorded. No doubt, the Court can exercise the jurisdiction to clear any ambiguity that may have arisen during the course of his examination. (9) It is well settled principle of law that while exercising jurisdiction under Article 227 of the Constitution of India in dealing with regard to an application under ORDER :18 Rule 17 C.P.C., I am of the view that unless the reasons given by the trial Court can be said to be moonshine, or irrational, rejection cannot be dubbed as suggestive non-judicial approach or bias or partiality on the part of the Court below. It is also well settled that because in the exercise of its discretion, the another Court might have taken a different view and allowed the application is also not a ground for interference in the exercise of supervisory jurisdiction. (10) In view of the above facts and circumstances of the case and the settled principles of law laid down by the Apex Court, I am of the considered view that the impugned ORDER :cannot be interfered with in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Accordingly, this writ application is dismissed.