IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.12.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(P.D) No.4130 of 2008 and M.P.No.1 of 2008 Anbu .. Petitioner -vs- C.Yoganandam .. Respondent This civil revision petition is filed under Article 227 of the Constitution of India, against the order and decretal order dated 27.6.2007 passed in I.A.No.808 of 2007 in O.S.No.48 of 1995 on the file of the District Munsif's Court, Poonamallee. For Petitioner : : Ms.A.B.Fathima O R D E R
The revision petitioner/respondent/plaintiff has filed this present civil revision petition as against the orders dated 27.6.2007 in I.A.No.808 of 2007 in O.S.No.48 of 1995 passed by the learned District Munsif, Poonamallee in allowing the application filed by the respondent/petitioner/defendant under Order 18 Rule 17 of CPC to recall D.W1 for marking of documents.
2.The trial Court, while passing orders in I.A.No.808 of 2007 in O.S.No.48 of 1995 has inter alia opined that’ the parties are contesting and the suit being filing three cases against each other etc and that the defendant/petitioner has sought for permission of the Court, to recall himself and mark these documents in order to provide an opportunity to bring all records and put forth and in order to give a quietus to litigation on merits,’ has allowed the application on the ground that no prejudice will be caused to the plaintiff and it is always open to the revision petitioner/respondent/plaintiff to cross examine and put forth his case.
3. The learned counsel for the revision petitioner/respondent/plaintiff urges before this Court that the order of the trial Court passed in I.A.No.808 of 2007 in allowing the application is contrary to law, weight of evidence and probabilities of case and that the trial Court has not disclosed any reason to support its discretion judicially and that it should have rejected the plea of the respondent/petitioner/defendant for examination of further witness on his side and in any event, the application filed by the respondent/Petitioner/defendant is devoid of particulars and merits and that the trial Court should have dismissed the said application and therefore prays for allowing this revision petition in the interest of justice.
4. In the affidavit in I.A.No.808 of 2007 filed by the respondent/petitioner/defendant , it is inter alia averred that he has filed documents along with the application and that the documents are very material to establish his case and therefore it is necessary to recall D.W.1 for the purpose of marking those documents. The said application has been filed under Order 18 Rule 17 of CPC.
5. The revision petitioner/respondent/plaintiff has filed a counter inter alia stating that the application for recalling D.W.1 is devoid of merits and that D.W.1 in his cross examination has deposed that he has been in possession of the disputed suit property in several generations and so if he would have been issued ‘B’ memos and kist receipts, house tax receipts even during 1960s and 1970s. But the documents produced for reception is from 1994 onwards and it shows that the petitioner has obtained the said documents by exercising his influence on the authorities and thereby the genuineness of the document is in doubt.
6. On going through the order passed by the trial Court, this Court is of the considered view that the trial Court has exercised its judicial discretion in allowing the application filed by the respondent/petitioner/defendant in I.A.No.808 of 2007. In this connection, it is to be noted that the power of a Court of law to recall a witness can be exercised either suo motu by the Court or at the instance of the party to the litigation. However, only the rider is that with the care and caution that power has to be exercised.
7. As a matter of fact, the Court cannot compel a litigant to examine a particular person as his witness. The power of the Court to recall a witness is discretionary one and after all an endeavour of the Court must be to see that the parties to the litigation produce the best evidence to project their case and in view of that matter, this Court is of the view that there is no irregularity or patent illegality in regard to the orders passed by the trial Court in allowing the application and resultantly, this civil revision fails and the same is liable to be dismissed infurtherance of substantial cause of justice.
8. In the result, this civil revision petition is dismissed. The order passed by the trial Court in I.A.No.808 of 2007 in O.S.No.48 of 1995 is affirmed by this Court for the reasons assigned in this revision. There shall be no order as to costs. Consequently, connected M.P.No.1 of 2008 is also dismissed.
sg
To the District Munsif,
Poonamallee