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2013 DIGILAW 1345 (PNJ)

Paramjit v. Prem Pal alias Mehar Pal

2013-10-04

L.N.MITTAL

body2013
Judgment L.N. Mittal, J. Defendant no. 3 has filed this revision petition under Article 227 of the Constitution of India impugning order dated 5.3.2013 Annexure P/7 passed by the trial court thereby dismissing application Annexure P/5 filed by defendants no. 3 and 5 under Order 18 Rule 17 of the Code of Civil Procedure (in short, CPC) for recalling Ram Kumar DW4 for further examination-in-chief. Ram Kumar is said to be one of the attesting witnesses of Will dated 5.10.1999 Ex. D2. He tendered his affidavit of examination-in-chief Annexure P/4 on 23.11.2012 regarding execution of the Will by testator Ram Sarup. He also stated that the original Will was Ex. D2. His cross-examination was deferred. His cross-examination was then recorded on 10.1.2013 which is also part of document Annexure P/4. In the said cross-examination, he stated that he had seen the court file on that day i.e. 10.1.2013 but the original Will was not available although certified copy was available. Defendants no. 3 and 5 in their application Annexure P/5 alleged that the original Will was on the court file even on 10.1.2013 at the time of cross-examination of the aforesaid witness and therefore, he is required to be recalled for further examination-in-chief to clarify the same. Respondent no. 1-plaintiff by filing reply Annexure P/6 controverted the averments made in application Annexure P/5 and opposed the said application. Learned trial court vide order Annexure P/7 has dismissed application Annexure P/5. Defendant no. 3 has filed this revision petition to challenge the said order. I have heard counsel for the parties and perused the case file. Counsel for the petitioner reiterated the aforesaid version as mentioned in application Annexure P/5. However, counsel for respondent no. 1-plaintiff relying judgments in Vadiraj Naggappa Vernekar (D) Through LRs. Versus Sharad Chand Prabhakar Gogate (S.C.), 2009(2) R.C.R. (Civil) 508; Surinder Kaur veresus Karanbir Singh (P&H), 2004(3) RCR (Civil) 161; Jatinder Singh Bhatia versus State & Ors. (Delhi), 2009 AIR (Delhi) 54 and Ashok Kumar Agarwal versus Pramod Kumar Jain (Rajasthan), 2012(1) R.C.R. (Civil) 343 contended that the witness already having been examined and cross-examined and discharged cannot be recalled at the instance of the defendants for further examination to fill up lacuna in the case and provision of Order 18 Rule 17 CPC is only for the convenience of the court to clarify doubts in the statement of any witness by recalling him. I have carefully considered the rival contentions. In the instant case, it is not in dispute that the original Will was on the file of the trial court at the time Ram Kumar DW4 was examined in chief as well as cross-examined. Even counsel for respondent no. 1/plaintiff did not dispute this factual position. Report to this effect has also been received from the trial court. Thus, it is apparent that Ram Kumar DW4 while stating in cross-examination that he had seen the court file and the original Will was not available was either negligent in perusing the court file or was intentionally telling a lie. In this regard, however, it is also apparent that counsel for the petitioner was also not vigilant because had he been vigilant, he could have pointed to the witness and the court then and there that the original Will was very much available on the file of the trial court. Be that as it may, the fact remains that the original Will was there in the file of the trial court and the witness wrongly stated that it was not there. In these circumstances, recalling of the said witness for clarifying the aforesaid factual position is very much essential and even contention of counsel for respondent no. 1plaintiff that witness may be recalled to clarify any doubt, supports this conclusion. Even in the judgments cited by counsel for respondent no. 1plaintiff, it has not been laid down that there is complete and absolute bar to the recall of any witness by the court under any circumstance. On the other hand, in appropriate cases, a witness can certainly be recalled for further examination/cross-examination and it is for this reason that provision of Order 18 Rule 17 CPC has been enacted. This is enabling provision under which the court is entitled to recall any witness in appropriate case. The instant case is the most appropriate case in which Ram Kumar DW4 should be recalled for his further examination keeping in view the aforesaid factual position. However, the petitioner has to be subjected to cost for the same because the needful was not done on behalf of the defendants while Ram Kumar DW4 made aforesaid statement in his cross-examination. The trial court has erroneously dismissed the application filed by defendants no. 3 and 5. Impugned order of the trial court, therefore, suffers from illegality and jurisdictional error. The trial court has erroneously dismissed the application filed by defendants no. 3 and 5. Impugned order of the trial court, therefore, suffers from illegality and jurisdictional error. Resultantly, the instant revision petition is allowed. Impugned order Annexure P/7 passed by the trial court is set aside. Application Annexure P/5 filed by defendants no. 3 and 5 is allowed and they are permitted to recall Ram Kumar DW4 for re-examination regarding the aforesaid fact of the original Will being on the court file, subject to payment of Rs. 5000/- as costs precedent to respondent no. 1-plaintiff. Besides it, the plaintiff shall also be entitled to further cross-examine the aforesaid witness.