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2015 DIGILAW 153 (RAJ)

JNV University of Jodhpur v. Ramdhan Daga

2015-01-17

BANWARI LAL SHARMA, SUNIL AMBWANI

body2015
Hon'ble AMBWANI, ACTG. CJ, J.—We have heard learned counsel appearing for the appellant-Jai Narayan Vyas University. 2. This Special Appeal has been filed against the order of learned Single Judge dated 10.11.2014, by which he has dismissed the writ petition filed by Jai Narayan Vyas University (for short, “the University”), against the order passed under Order 18 Rule 17 of the Code of Civil Procedure, seeking recall of the plaintiff to be cross-examined by the counsel appearing for the University-defendant in the suit for claiming interest on the arrears of commutation of pension. 3. An application under Order 18 Rule 17 of the Code of Civil Procedure was filed by learned counsel appearing for the University on the ground that at the time of answering the questions, the plaintiff, who had appeared in the witness box for deposing, was covering his face by a file, which caused difficulty in cross-examining him. An objection was raised, on which the Presiding Officer directed the cross-examination to continue. It is alleged that since the counsel appearing for the defendant-University, in view of the conduct of the plaintiff, who had deposed as a witness, could not mark the documents as exhibits, he had to close the cross-examination of the plaintiff. In the circumstances, the interest of justice suffered, in which the counsel for defendant-University could not complete the cross-examination of plaintiff. 4. Learned Single Judge found that the trial court had in its order dated 10.5.2012 concluded that there was no good ground to recall the witness and had rejected the application. Learned Single Judge was of the opinion that at the time when the statement of the witness was recorded, no objection was made, nor any written objections were filed or recorded on order sheet of any interference in the cross-examination, which may have led to non-exhibiting the documents. Merely indicating that the witness did not cooperate at the time of cross-examination, is not a ground, which is sufficient to recall the witness. 5. The Order 18 Rule 17 of the Code of Civil Procedure gives powers to the Court to recall and examine the witness at any stage of a suit. Rule 17 provides as follows:- “17. Merely indicating that the witness did not cooperate at the time of cross-examination, is not a ground, which is sufficient to recall the witness. 5. The Order 18 Rule 17 of the Code of Civil Procedure gives powers to the Court to recall and examine the witness at any stage of a suit. Rule 17 provides as follows:- “17. Court may recall and examine witness.- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.” 6. Rule 17 gives power to the Court, in the interest of justice, to recall any witness at any stage of the proceeding for putting question to him as the Court thinks fit. It is a power given to the Court, to serve the object and purpose of Section 165 of the Evidence Act, to elicit any information from the witness or to seek any clarification for doing justice between the parties. Where a proper opportunity was given to the opposite side to cross examine the witness, an application for recalling the witness is not maintainable. In Surinder Kaur vs. Karanbir Singh ( AIR 2004 P&H 377 ), it was held that the provision is merely an enabling provision for the convenience of the Court. Similar observations were made in Prahlad Das vs. Karunaram ( AIR 1999 Raj. 108 ), in holding that where a proper opportunity was given to the opposite party to cross-examine the witness, an application for recalling the witness is not maintainable. 7. In Bosta Appala Narasayya vs. Raghunanda Lakshmi ( AIR 2004 AP 82 ), it was held that the witness cannot be recalled merely because the petitioner could not give instructions to his counsel on the date fixed for examination of the witness, the ground being vague. In George Thomas vs. Srividya (AIR 2003 Madras 290), it was held that where the party has effectively participated in the cross examination of witnesses, the party will not be permitted to recall the witnesses for cross-examination. 8. In George Thomas vs. Srividya (AIR 2003 Madras 290), it was held that where the party has effectively participated in the cross examination of witnesses, the party will not be permitted to recall the witnesses for cross-examination. 8. The Courts in India have also held that in order to do substantial justice between the parties, such as, where the certified copy of the sale deed was already filed, permission may be given to file original sale deed and the witness was permitted to be recalled for proving/marking the document in evidence. In Gomati Bai vs. Nandakishore Jhunjhunwala (2003 AIHC 1129 (Orissa), permission to recall plaintiff's witness for further cross-examination was granted, where the guardian ad litem had not conducted the suit on minor's behalf properly. The rule, however, is discretionary, for which trial court's power should be used with caution. Whenever trial court finds that counsel is only trying to cover up a deficiency or wants to recall a witness on the ground that earlier he did not have proper instructions from his client or that recall of witness is not necessary for proving or disproving a fact, the discretion should not be exercised. 9. In the present case, we find that learned Single Judge has considered the ground raised by the appellant-University that its counsel was not given good and sufficient opportunity to cross-examine the witness and did not agree that the conduct of the plaintiff appearing as a witness was such which may have given a cause to the counsel for defendant to recall the witness for cross-examination. 10. In order to satisfy ourselves, we have examined the matter and find that an oral objection was taken, at the time of cross-examination, that the plaintiff, who had appeared as a witness, was covering his face with the file. We are unable to understand as to in what manner, such conduct of witness could have caused any interference or obstruction in cross-examination and in what manner, the defendant's counsel was prohibited in exhibiting the documents. It appears that learned counsel for the defendant-University was either too sensitive, or did not have sufficient experience in cross-examining the witness, and that instead of continuing the cross-examination, he closed the cross- examination without raising any objections in writing. It appears that learned counsel for the defendant-University was either too sensitive, or did not have sufficient experience in cross-examining the witness, and that instead of continuing the cross-examination, he closed the cross- examination without raising any objections in writing. The application for recalling the witness was filed, much later, and that a review application was also filed, after a long period, for recalling the witness. 11. In our opinion, learned Single Judge has not committed any error of law in dismissing the writ petition against the order dated 10.5.2012, rejecting the application for recalling the witness. 12. In this matter, we are of the view that the University is unnecessarily trying to delay the decision of the suit. A statutory body is required to act fairly, and to give proper assistance in the proceedings of the Court. The University, as a public body, should not allow itself to be led by an incorrect legal advice to prolong the proceedings of the suit unnecessarily to the disadvantage of the plaintiff, who is respondent before us, seeking to pursue his remedies in the Court of law. 13. The Special Appeal is dismissed, with costs quantified at Rs.10,000/- (Rs. Ten Thousand Only) to be deposited in the trial court within a month and to be paid to the plaintiff-respondent.