IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14919 of 2011
Mohan Sao
Versus
Smt. Indrawati Lal, & Ors.
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ORDER
03. 27.09.2011. I have heard Mr. Rabindra Kumar Sinha No.2, the
learned counsel appearing on behalf of the petitioner and Mr.
Jitendra Kishore Verma, the learned counsel appearing on
behalf of the respondent.
(2) This application under Article 227 of the
Constitution of India has been filed by the plaintiff-petitioner
against the order dated 27.07.2011 passed by Subordinate
Judge 3rd Patna in Title Suit No.246 of 2004 whereby the
learned Sub Judge, Patna rejected the petition dated
13.07.2011 filed by the petitioner to recall Smt. Indrawati
Lal, D.W.5 for her further cross-examination.
(3) The learned counsel for the petitioner submitted
that at the time of argument of the case, it was felt by the
counsel that on some important points, Smt. Indrawati Lal,
D.W.5 has not been cross-examined and, therefore, the
application was filed but the learned Court below rejected the
said application by the impugned order. The petitioner has
prayed to recall the said D.W.5 to cross-examine on
particular point mentioned in the application. The learned
Court below rejected the same without assigning tenable
reasons and, therefore, the learned Court below has not
exercised a jurisdiction vested in it by law and, thereby great
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prejudiced is caused to the petitioner.
(4) On the other hand, the learned counsel
appearing for the respondent submitted that D.W.5 was
earlier examined on Commission for two days at Patna. She
resides at New Delhi and after much effort and persuasion,
she made herself available for examination and cross-
examination. After her full cross-examination, the case of
both the parties was closed and thereafter the case was fixed
for argument. On the ground that during course of
argument, it was felt by the learned counsel for the petitioner
that further cross-examination is required to be made is not a
ground for recall of the witness. The hearing of the case is
going on and, therefore, the learned Court below rightly
rejected the application for recall. In such view of the
matter, this Court cannot interfere with the impugned order
in exercise of supervisory jurisdiction under Article 227 of the
Constitution of India.
(5) Admittedly, the suit for specific performance of
contract was filed by the plaintiff-petitioner. It is also
admitted fact that the evidences of the parties have been
closed and argument is going on.
(6) From perusal of the impugned order, it appears
that the learned Court below found that the cross-
examination has been made by the sr. counsel on behalf of
the plaintiff. After hearing, the case was posted for
Judgment but the petitioner filed application before the
District Judge for transfer of the case which was rejected,
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therefore with a view to linger the matter anyhow the
petitioner filed the application for recall of D.W.5.
(7) In A.I.R. 2009 (S.C.) 1604, the Hon’ble
Supreme Court has held that though the provision of
order 18 Rule 17 C.P.C. have been interpreted to
include application to be filed by the parties for recall
of witness, the main purpose of the said rule is to
enable the Court, while trying a suit, to clarify any
doubts which it may have with regard to evidence laid
by the parties. The said provisions are not intended to
be used to fill up omissions in the evidence of a
witness who has already been examined. The power
under the provisions of Order 18 Rule 17 C.P.C. is to be
sparingly exercised in appropriate cases and not as a
general rule merely on the ground that his recall and
re-examination would not cause prejudice to the
parties. That is not the scheme or intention of Order
18 Rule 17 C.P.C. Here, according to the petitioner, some
suggestions could not be given to the D.W.5. It is obvious
that only after cross-examination of the witness that certain
lapses in his evidence came to be noticed which impelled the
petitioner to file the application. Such a course of action
which arises out of the fact situation in this case, does not
make out a case for recall of a witness after his examination
has been completed.
(8) In view of the above settled principles of law, the
learned Court below has exercised a discretionary jurisdiction
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by disallowing the application to recall. The Court should not
exercise the power under Order 18 Rule 17 to recall a witness
to fill up the lacunae in the evidence of the witnesses which
have already been recorded. No doubt, the Court can
exercise the jurisdiction to clear any ambiguity that may have
arisen during the course of his examination.
(9) It is well settled principle of law that while
exercising jurisdiction under Article 227 of the Constitution of
India in dealing with regard to an application under Order 18
Rule 17 C.P.C., I am of the view that unless the reasons
given by the trial Court can be said to be moonshine, or
irrational, rejection cannot be dubbed as suggestive non-
judicial approach or bias or partiality on the part of the Court
below. It is also well settled that because in the exercise of
its discretion, the another Court might have taken a different
view and allowed the application is also not a ground for
interference in the exercise of supervisory jurisdiction.
(10) In view of the above facts and circumstances of
the case and the settled principles of law laid down by the
Apex Court, I am of the considered view that the impugned
order cannot be interfered with in exercise of supervisory
jurisdiction under Article 227 of the Constitution of India.
Accordingly, this writ application is dismissed.
(Mungeshwar Sahoo, J.)
Patna High Court, Patna
The 27thday of September, 2011
Sanjeev/.A.F.R.