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2014 DIGILAW 415 (CAL)

Jaspal Singh Chandhok v. Ashoke Kumar Poddar

2014-05-06

DEBANGSU BASAK

body2014
JUDGMENT Debangsu Basak, J. The suit which was for declaration and partition was pending since 1990. The witness action in the suit commenced before me. The witness of the plaintiff was examined in Chief on January 31, 2014 and was cross-examined on February 28, 2014. The cross-examination of such witness concluded on that date. The plaintiff produced only one witness on his behalf. The Defendant No. 1 produced himself as his witness. The Defendant No. 1 was examined in Chief on March 6, 2014 and cross-examined on March 20, 2014. The cross-examination of the Defendant No. 1 was concluded on that date. In the course of cross-examination, the Defendant No. 1 through his Advocate’s letter dated March 11, 2014 disclosed documents which the defendant no. 1 sought to rely upon in the suit. The Defendant No. 1, thereafter, applied for his re-examination by G.A. No. 801 of 2014. The Defendant No. 1 sought leave to withdraw such application with liberty to file afresh. Such liberty was granted by an order dated April 11, 2014. The present application was made subsequent thereto. By the present application the Defendant No. 1 sought an opportunity to be re-examined so as to enable the Defendant No. 1 to fill in the lacuna and explain the inconsistencies that remained in the examination in Chief and which surfaced at the time of cross examination. It was contended on behalf of the Defendant No. 1 that, for the ends of Justice the Defendant No. 1 should be permitted to be re-examined on the documents disclosed. The documents disclosed as well as the examination of the Defendant No. 1 were necessary to render Justice between the parties. The application was opposed by the plaintiff. It was contended on behalf of the plaintiff that, the Defendant No. 1 adopted dilatory tactics. Reliance was placed on an order dated August 14, 2012 which recorded that there was clear indication that the defendants were trying to delay the matter. The defendants did not disclose documents as late as on July 31, 2012 which prompted the learned Judge to arrive at the finding that the defendants were trying to delay the matter. It was contended on behalf of the plaintiff that, the present application was another instance of dilatory tactics adopted by the Defendant No. 1. I have considered the rival contentions of the parties and the material on record. It was contended on behalf of the plaintiff that, the present application was another instance of dilatory tactics adopted by the Defendant No. 1. I have considered the rival contentions of the parties and the material on record. The trial of the suit had commenced. The plaintiff produced his witness and the evidence on behalf of the plaintiff was closed. The examination and cross examination of the witness of the Defendant No. 1 was also over. In the midst of cross examination of the witness of the Defendant No. 1, the advocate for the Defendant No. 1 by the letter dated March 11, 2014 disclosed new set of documents which the defendant no. 1 sought to rely upon in the suit. When the plaintiff produced his witness, he did not have the benefit of the new documents in the possession of the Defendant No. 1. The plaintiff could not arrange his case on the basis of the new disclosures. The Defendant No. 1 sought re-examination of him by the present application. Allowing the Defendant No. 1 to be reexamined as prayed for would not permit the plaintiff to cross examine the Defendant No. 1. That would not be in the ends of Justice. The Defendant No. 1 was seeking to rely upon new set of documents not disclosed earlier by him. It was claimed by the defendant no. 1, that such documents were in his possession. The plaintiff therefore was required to be afforded an opportunity to cross examine the witness of the Defendant No. 1. The re-examination of the witness of the Defendant No. 1 would not serve such purpose. In such premises, it would be appropriate to allow the Defendant No. 1 to recall his witness with the right of the plaintiff to cross examine the recalled witness of the Defendant No. 1 reserved for the plaintiff. I am of the same view as recorded in the order dated August 14, 2012 that the Defendant No. 1 was trying to delay the matter. However, it would not be in the ends of Justice to shut out a party wanting to adduce further evidence and disclose documents. At the same time, the plaintiff was required to be compensated by way of costs. However, it would not be in the ends of Justice to shut out a party wanting to adduce further evidence and disclose documents. At the same time, the plaintiff was required to be compensated by way of costs. In the facts and circumstances of the instant case therefore, the Defendant No. 1 is allowed to recall his witness on the condition that, the Defendant No. 1 pays a sum of Rs.50,000/- as assessed costs to the plaintiff as a condition precedent. The Defendant No. 1 will tender the costs and also offer inspection of the new documents disclosed at least 7 days prior to the date fixed for hearing. The plaintiff will be entitled to cross examine the witness of the Defendant No. 1. The aforesaid directions are without prejudice to the rights and contentions of the plaintiff inter alia that, the plaintiff did not have the benefit of the documents disclosed by the letter dated March 11, 2014 when his witness was examined. Let C.S. No. 994 of 1990 appear in the Monthly List of June 2014 under the heading “For hearing”.