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2011 DIGILAW 386 (CAL)

Anisur Rahman v. Safiur Rahaman

2011-03-16

PRASENJIT MANDAL

body2011
JUDGMENT Prasenjit Mandal, J. 1. THIS application is at the instance of the defendant No.1 and is directed against the order dated August 16, 2010 passed by the learned Judge (Senior Division), Chinsurah, District - Hooghly in Title Suit No.274 of 1996. 2. THE short fact necessary for the purpose of disposal of this application is that the plaintiffs/opposite parties herein instituted a suit for declaration, partition and permanent injunction. In that suit, the defendant No.1 entered appearance and he is contesting the said suit by denying the material allegations placed in the plaint. Both the parties adduced evidence. Thereafter, the suit was fixed for hearing argument over the suit. When hearing of argument on behalf of both the parties was almost complete, at that time, the plaintiffs filed an application for marking a certain document as exhibit. That application was allowed by the learned Trial Judge by the impugned order. Being aggrieved, this application has been preferred. Now, the point for consideration is whether the impugned order should be sustained. 3. UPON hearing the learned Counsel for the parties and on going through the materials on record, I find that the suit filed by the plaintiffs/opposite parties was for declaration of title, partition and permanent injunction. Both the parties have adduced evidence and the evidence on behalf of the parties was complete when the suit was at the stage of almost close of argument, the plaintiffs filed an application for recall of the P.W.I. Such application for recall is appearing as annexure - C at page No.26. As to ground for recall, the plaintiffs have clearly stated that upon perusal of the written argument filed by the defendants, the plaintiffs verified the certain fact as to marriage of the mother of Bande Ali, namely, Mahitan Bibi because that was necessary for calculation of the share of the parties. On the basis of the written argument, the plaintiffs enquired about the second marriage of Mahitan Bibi and being satisfied that a Deed of 1926, that is, the registered Deed No.218 of 1926 would prove that Mahitan Bibi married twice. Such fact is to be brought on record to determine the shares of the parties with regard to the suit properties as described in the schedule of the plaint. Such fact is to be brought on record to determine the shares of the parties with regard to the suit properties as described in the schedule of the plaint. The learned Trial Judge has clearly observed that such Deed of 1926 if brought on record, it may play a vital and important role in adjudicating the matter on merit, that is, to declare the right, title and interest of the parties in the suit property. The learned Trial Judge has also observed that the ground of mere delay cannot be overlooked to consider a piece of evidence. I have stated above that the suit is for declaration of title and for partition. So, both the parties are equally interested in the matter of declaration of title and partition. The opposite parties herein have clearly stated the grounds under what circumstances they have collected the materials, that is, a Deed of 1926 upon getting the copy of the written argument and they decided to prove that Mahitan Bibi married twice, once with Sk. Maqbub and after his demise to Sk. Ochimuddin. The opposite parties have wanted to mark the said document as exhibit No.12. 4. THEREFORE, I find that the questions to be put to the P.W.I on recall are very much limited to the Deed of 1926 and there is no scope of improvement of the evidence save and except the proof of the Deed of 1926 to prove certain relations. The ground of delay has been explained by the opposite parties. Mr. Subrata Kr. Roy Karmarkar, learned Advocate for the opposite party has referred to the decision of Vadiraj Naggappa Vernekar (Dead) through LRS. vs. Sharadchandra Prabhakar Gogate, reported in 2009(4) SCC 410 and he has submitted that when a party prays for permission to re-examination on recall unless sufficient ground are shown for not producing the same earlier prayer for recall should not be entertained. If evidence of a witness on re- examination has a bearing on the ultimate decision of the suit, the Trial Court may permit recall of such witness for re-examination in chief with permission to defendants to cross-examine the witness. To understand the ratio of the said decision, the paragraph Nos. 25 to 30 are very much important, which are quoted below for proper appreciation: "25. To understand the ratio of the said decision, the paragraph Nos. 25 to 30 are very much important, which are quoted below for proper appreciation: "25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, 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 the evidence led 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. 26. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. 27. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after the cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. 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. 28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of the Order 18 Rule 17 CPC. 29. 28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of the Order 18 Rule 17 CPC. 29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be involved not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. 30. Of course, if the evidence on re-examination of a witness has bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case."' 5. THIS decision clearly lay down when the recall is permitted. In the instant case, since an old document of 1926 is to be marked as per prayer of the plaintiffs, the question of suffering prejudice by the plaintiffs does not arise at all. The defendant no.1 would get opportunity to cross-examine the P.W.1 again when he is recalled and it is not the question to fill up the lacuna at all as observed by the learned Trial Judge but to decide a vital question, that is, for determination of the share of the parties. Therefore, I am of the view that this decision would be applicable in the instant situation. 6. SIMILARLY, the learned Advocate for the opposite party has referred to the decision of a learned Single Judge of this Hon'ble Court reported in 2008(1) CLJ (Cal) 450 which clearly lays down that the plaintiff can claim to introduce new evidence at a latter stage only when he satisfies that in spite of due diligence he had no knowledge of the evidence earlier. This decision lays down the ratio of the decision of Salem Advocate Bar Association case vs. Union of India, reported in 2005(6) SCC 344 , which lays down that the a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the Court may permit leading of such evidence at a latter stage of such terms as may appear to be just. The decision of Salem Advocate Bar Association (supra) also, I hold, will not be applicable in the instant situation because the plaintiffs have clarified how they got the information about Mahitan Bibi and her marriage on two occasions. For proper appreciation, the paragraph No. 13 of the decision of Salem Advocate Bar Association, Tamil Nadu is quoted below:- "13. In Salem Advocate Bar Association case it has been clarified that on deletion of Order 18 Rule 17-A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e.1.7.2002, would stand restored. The rule was deleted by Amendment Act of 2002. Even before insertion of Order 18 Rule 17-A, the Court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17-A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the Court may permit leading of such evidence at a later stage on such terms as may appear to be just." 7. IN consideration of the above observations and the above decisions, I am of the view that the learned Trial Judge has clearly stated that the said document may have a vital and important role in adjudicating the matter on merit. The learned Trial Judge has, therefore, exercised the discretionary power even at the stage only to adjudicate the matter properly declaring the shares of the parties with regard to the suit property. The learned Trial Judge has, therefore, exercised the discretionary power even at the stage only to adjudicate the matter properly declaring the shares of the parties with regard to the suit property. Therefore, I am of the view that the learned Trial Judge has properly exercised the jurisdiction vested in him by allowing the said application on contest and thereby allowing the P.W.1 to be re-examined on recall. 8. THEREFORE, there is nothing to interfere with the impugned order. Accordingly, this application is dismissed. Considering the circumstances, there will be no order as to costs. 9. URGENT xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.