IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL WRIT JURISDICTION CASE No.10850 of 2011
SUNIL KUMAR SINHA – Petitioner/s(s)
Versus
AMIT KUMAR & ANR – Respondent/s(s)
___________
2. 11.07.2011 Heard the learned counsel for the petitioner.
This writ application has been filed against the
order dated 29.4.2011 passed by Sub Judge 9 th
Muzaffarpur in Title Suit No. 518 of 2007, whereby the
prayer of the petitioner for recalling the PW Nos. 1, 2,
3, 5 and 6 for their further cross examination has been
rejected.
The learned counsel for the petitioner
submitted that at the time of argument it was felt that
the said PWs have not been cross examined on certain
points and the petitioner also offered cost but the
learned court below rejected the prayer without
considering the facts that further cross-examination is
necessary. The learned counsel for the petitioner relied
upon a decision of the Apex Court reported in 2011
(2) PLJR 139.
From perusal of the order it appears that the
evidence was closed on 8.12.2010 and the case was
fixed for argument immediately on 21.12.2010. At this
juncture the petitioner filed an application for recalling
the said witnesses on the ground that the said
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witnesses are required to cross-examine further on
certain grounds. From perusal of the application it does
not appear that on what point the cross-examination is
required. So far the decision cited by the petitioner is
concerned in the said very decision the Apex Court held
that for recall or re-opening the evidence of a party the
court exercises power under Section 151 of the Code of
Civil Procedure. The Apex Court further held that the
power to recall any witness is not intended to be used
to fill up omission in evidences of a witness who has
already been examined. It has specifically been held
that if there is a time gap between the completion of
the evidence and hearing of the arguments for
whatsoever reason and if in that period the party comes
across some evidence which he could not lay his hands
earlier or some evidence in regard to the conduct or
action of the other party comes into existence, the
court may in exercise of its inherent power under
Section 151 C.P.C. permit the production of such
evidence if it is relevant and necessary in the interest of
justice.
Here only a bald statement has been made on
the ground that it is necessary for further cross-
examination without any clarification. From perusal of
the impugned order it appears that the learned court
below observed that sufficient time was granted to the
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petitioner for cross-examining the witnesses and senior
counsel Sri Gulab Rabbani has fully cross-examined the
witnesses. However, at the time of hearing another
senior counsel was engaged.
Considering the above facts and circumstances
of the case, in my opinion, it is not a fit case where
supervisory jurisdiction under Article 227 of the
Constitution of India be exercised as the court below
has not acted beyond his jurisdiction. Accordingly, this
writ application is dismissed.
S.S. (Mungeshwar Sahoo,J.)