Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 758 (HP)

Sudha Khera v. Rattanjit Singh

2013-08-21

A.M.KHANWILKAR

body2013
JUDGEMENT 1. HEARD counsel for the parties. 2. THIS petition under Article 227 of the Constitution application takes exception to the order passed by the trial court allowing application under order 18 Rule 17 CPC filed by the plaintiff for recalling witness PW-5. Pw-5 is working with Municipal Corporation and was examined to prove plan Ex Pw-5/A, which was submitted by the predecessor of the petitioners to the Municipal Corporation. It is not in dispute that the said plan Ex Pw-5/A has been taken on record and exhibited. 3. DURING the pendency of suit, plaintiff realized that the said document was unreadable. For that reason, present application was filed by the plaintiff to recall PW-5 so that to bring on record another clear copy of the said plan. The trial Court has accepted that request of the plaintiff. 4. THE principal argument before me is that the reason recorded by the trial court that no prejudice will be caused to the petitioners, cannot be the basis to allow such application. In support of this submission, reliance is placed on exposition in paragraph 28 of the judgment of the Apex Court in Vadiraj Naggappa Vernekar(dead) through L.Rs Vs. Sharadchandra Prabhakar Gogate; 2009 4 SCC 410 . Reliance is also placed on exposition in paragraph 25 of the same decision about the scope of order 18 Rule 17 and the circumstances in which the same should be invoked by the trial Court. No doubt, the trial Court has not recorded a clear finding that it wanted the plaintiff to bring the clear copy of Ex PW-5/A on record for want of clarity in the said document. However, since the averment made in the application, as filed by the plaintiff to the effect that Ext PW-5/A was unreadable and, therefore, it was necessary to bring on record clear copy of the plan, remained uncontroverted. Perhaps the trial Court has not given much emphasis to that factual aspect, but the trial Court, after considering the rival submissions, decided to exercise discretion in favour of the plaintiff. In my opinion, no interference with that discretionary order is warranted in the fact situation of the present case. Perhaps the trial Court has not given much emphasis to that factual aspect, but the trial Court, after considering the rival submissions, decided to exercise discretion in favour of the plaintiff. In my opinion, no interference with that discretionary order is warranted in the fact situation of the present case. Inasmuch as, if the plan Ex PW-5/A is illegible and unreadable, it is appropriate that a clear copy of that plan is brought on record so that while deciding the matter in issue, there would be no inconvenience or misreading of the document by the trial Court. 5. IN the circumstances, this petition fails and the same is dismissed, so also the pending application(s), if any. R &P is ordered to be returned back to the trial Court forthwith. Parties to appear before the trial Court on 9th September, 2013.