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2013 DIGILAW 824 (CAL)

Somenath Das v. Somnath Das

2013-11-12

ASIM KUMAR MONDAL

body2013
Judgment : Asim Kumar Mondal, J. This is an application under Article 227 of the Constitution of India challenging the order being No. 24 dated May 17th, 2012 passed by the learned Civil Judge (Senior Division), Kalna in Title Suit NO. 67 of 2008. The opposite party Sri Somnath Das as plaintiff filed a suit for recovery of money and interest along with compensation against the present petitioners. The said suit has been registered as Title Suit No. 67 of 2008 and pending before the learned Civil Judge (Senior Division), Kalna, District – Burdwan. The plaintiff Somnath Das was examined and cross-examined in full. The evidence of P.W. 1 Somnath Das was subsequently closed and he was discharged. At this stage the petitioners / defendants filed a petition praying for recall of P.W. 1 Somnath Das to put some important questions to the said witness which the learned Advocate for the defendants / petitioners failed to put him at the time of cross-examination. The proposed questions relates to whether P.W. 1 used to hold requisite money lending licence or he may use to run money lending business or to show the same in the return filed by him before Income Tax Authorities. Thus, the case of the petitioners that for the purpose of proving the defence case the aforesaid questions ought to have been asked the time of cross-examination of P.W.1 but due to the inadvertent mistake on the part of the learned lawyer engaged on behalf of the petitioners the questions were not put to P.W. 1. As such one application was filed for passing necessary order to recall P.W. 1 for putting those questions to elicit the truth. The learned Judge by an order being No. 24 dated 17th May, 2012 was pleased to reject the said prayer of the petitioners. Being aggrieved by and dissatisfied with the order impugned the present revisional application has been preferred on the ground that the learned Trial Judge in exercise of its jurisdiction acted illegally and with material irregularity by rejecting the petitioner’s prayer for recalling of P.W. 1. Further that learned Trial Court illegally hold that the proposed questions for recall do not come within the permissible limits of the provisions of Section 165 of Indian Evidence Act or Order 18 Rule 17 of the Civil Procedure Code. Mr. Further that learned Trial Court illegally hold that the proposed questions for recall do not come within the permissible limits of the provisions of Section 165 of Indian Evidence Act or Order 18 Rule 17 of the Civil Procedure Code. Mr. Hiranmoy Bhattacharyya appears on behalf of the petitioners and submits that the plaintiff / opposite party did not file any written objection against the petition filed for recalling of P.W. 1 . Mr. Bhattacharyya draws my attention as to the photocopy of written statement filed by the defendant Nos. 1, 2 and 3 annexed as annexure ‘A’ and submits that at the time of cross-examination learned lawyer for the defendants made to put some questions that is whether P.W. 1 used to hold requisite money lending licence or to run money lending business or to show the same in return filed by him before the Income Tax Authority. Mr. Bhattacharyya submits that there is claim and counter claim between the parties over the loan transaction. The plaintiff claimed that he has disbursed an accommodation loan of Rs. 1,00,000/- (Rupees one lakh) to the defendants. On the contrary the defendant denied the claim of the plaintiff and have stated that the plaintiff had taken a loan of Rs. 1,00,000/- (Rupees one lakh)in cash from the defendant No. 2 and subsequently he repaid the loan by issuing five cheques amounting to Rs. 20,000/- (rupees twenty thousand) each. Mr. Bhattacharyya prays to consider the entire prayer for recall of P.W. 1 of this perspective and as such the proposed questions are very much vital in order to substantiate the defence case for which the prayer for recall of P.W. 1 should have been allowed for the interest of justice by the learned Court below. Mr. Sanjib Kumar Mukhopadhyay with Mr. Sunirmal Khanra and Ms. Kalpita Paul appears for the opposite party. Mr. Mukhopadhyay submits that no doubt the Court can invoke those power under Order 18 Rule 17, even at the instance of a party. But that it can do, in its discretion, when an unforeseen situation has developed or even when an inadvertent omission is there, provided that it causes no surprise or prejudice to the other parties. It is further submitted that in the present case the evidence of P.W. 1 has already been closed or it will cause the other party surprise and the gravest of prejudice. It is further submitted that in the present case the evidence of P.W. 1 has already been closed or it will cause the other party surprise and the gravest of prejudice. It is nothing but a time to fill up the lacuna in evidence under the pretext of recall of P.W. 1. Learned counsel appearing on behalf of the opposite parties relied upon the decision as reported in 71 C.W.N. at page 47, 1984 (2) Supreme Court Cases 354, AIR 1999 Allahabad at Page 14, AIR 2009 Supreme Court 1604. I have carefully considered the submissions advanced by learned Counsel for the parties as well as the certified copy of the order impugned. It is the settled principle of law that rejecting the application under Order 18 Rule 17 may be considered vitiated on the ground of being bases on non-judicial approach of bias. Let us see whether the order impugned passed by the learned Trial Court is based on non-judicial approach or biased. Learned Trial Court in the impugned order being No. 24 dated May 17, 2012 as observed that plaint reflects that the plaintiff had allegedly advanced a sum of Rs. 1,00,000/- (Rupees one lakh) to the defendants and this amount was given as a loan which the defendants subsequently failed to repay. During trial P.W. 1 was examined and cross-examined at length and thereafter the instant recall petition was filed. The defendants have countered the allegations of the plaintiff by stating that the same advance was not a loan, it was in fact the repayment of a loan which the plaintiff had taken earlier from the defendants. However, the defendants attempted of taking of Rs. 1,00,000/- (rupees one lakh) as loan but at the same time denied that they have taken any loan from plaintiff. It is further observed by the learned Court below in impugned order that P.W. 1 was cross-examined elaborately by the defendants but at that time the defendants did not feel any necessity to cross-examine the witness on the point for which recall is proposed. It is further observed that the matter were very much within the knowledge of the defendants at the relevant point of time of the cross-examination. It is further observed that the matter were very much within the knowledge of the defendants at the relevant point of time of the cross-examination. The learned advocate for the defendants did not take any care to put such questions to the witness and now they are trying to fill up that lacuna by filing the instant petition for recalling of P.W. 1. Finally learned Trial Judge has observed that the proposed questions for recall do not come within the permissible limit of the provisions of either Section 165 of the Indian Evidence Act or under Order 18 Rule 17 of the Civil Procedure Code. In view of the backdrop of the case of the parties that plaintiff claimed that the defendants took loan of Rs. 1,00,000/-(rupees one lakh) which was given to them by five cheques of Rs. 20,000/- (rupees twenty thousand) each and the defendants has failed to repay the same as such plaintiff filed the instant suit. On the contrary the defendant countered that plaintiff took loan from the defendant in cash and has repaid the same by five cheques of Rs. 20,000/-(Rupees twenty thousand) each. So, the fact of loan either advanced by the plaintiff in favour of the defendant or repayment of loan taken by plaintiff from the defendant is an admitted position. Under the circumstances the proposed question, in my considered view is not necessary to discover or to obtain proper proof of relevant facts. For the sake of argument if we accept the contention of petitioners that the learned advocate for the defendants committed an inadvertent omission to put the question as proposed during the cross-examination of P.W. 1, same also cannot be accepted as the other party has already discharged his witness and close the evidence so it will cause the other party surprise and gravest of prejudice. It is not the case of the petitioner that due to an unforeseen situation developed, learned lawyer could not brought the same before this Court during cross-examination of P.W. 1. It is not the case of the petitioner that due to an unforeseen situation developed, learned lawyer could not brought the same before this Court during cross-examination of P.W. 1. I am unable to accept the argument of learned Advocate for the petitioner that in absence of any provision providing for reopening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the Court, the inherent power under Section 151 of the Code, subject to its limitation, can be invoked in appropriate cases to reopen the evidence or which recall witness for further examination. In the instant case, the facts and circumstances is otherwise and clearly indicates the intention of the petitioner to fill up the lacuna which may cause prejudice to the other party. Considering the all aspects, facts and circumstances of the case and submissions advanced by the learned Counsel for the parties I have no hesitation to hold that the learned Trial Judge has properly exercised its discretion in rejecting the prayer for recall of P.W. 1 basing on reasoned order which cannot be suggestive as non-judicial or biased approach on the part of the trial court. Therefore, I find no merit in the revisional application and the same is liable to be dismissed. Thus, the revisional application is dismissed without cost. Any order of stay granted by this court stands vacated.