When court can permit recall of witness for exhibition of documents?

 In Ram Sahai v. Kuberdan, (1956 Raj LW 306) (supra) it was held that certainly Order 18 Rule 17 authorises a court to recall a witness but for the purposes of putting any questions which the court itself might think necessary. It does not authorise a party to have a witness, whom he has already cross examined, recalled for the purpose of further cross examination. This citation obviously does not apply to the case in hand because here the plaintiff is himself recalling the witness because certain documents were not exhibited due to the lapse on the part of the advocate. In Shyamapada Neogy's case, (1967 (71) Cal WN 747) (supra) it was observed that it is only under special circumstances that such an order can be passed. I am of the view that when the court below after having considered ail the points has allowed the application under Section 151 CPC, the order should not be interfered with as no prejudice is, being caused to the defendant as they have been compensated by payment of cost of Rs. 2,000/-and will have opportunity to cross examine witnesses. The trial court has not committed an error of jurisdiction.

Rajasthan High Court

Jodhpur Gums & Chemicals Pvt. Ltd. vs Punjab National Bank And Ors. on 30 October, 1998

Equivalent citations: AIR 1999 Raj 38, 1999 (2) WLC 280

Bench: M Yamin

1. This is a revision against the order of learned Additional District Judge No. 2, Jodhpur dated 22-8-98 by which he allowed an application of the plaintiff Bank to re-summon PW-2 Utsav Raj Bhandari and PW-3 Manak Chand Jain in order to prove certain documents which were left unexhibited because of lapse on the part of the advocate of plaintiff.

2. I have heard the learned counsel for the petitioner and perused the order as well as application of the plaintiff.

3. Learned counsel for the petitioner submitted that according to Order 18 Rule 17 CPC a witness cannot be recalled to fill up lacuna. He submitted that an application under Order 18 Rule 17 CPC was moved with an oblique motive to prolong the case as other witnesses were not present and the evidence of the plaintiff was likely to be closed. He relied on AIR 1992 Bombay 406. Steelage Industries Limited v. Smt, Chander Bagai. He also cited 1956 Raj LW 306, Ram Sahai v. Kuberdan and Shyamapada Neogy v. Asoke Kr. Biswas,(l967) 7I Cal WN 747. He submitted that the witnesses have been cross examined and the case of the defendant has been put to them and in case these witnesses are recalled to prove some other documents, the witnesses will be on the one hand filling up the lacuna of the case of the plaintiff and on the other hand serious prejudice will be caused to the defendant. Learned trial Judge after relying on AIR 1966 Andh Pra 295. Sultan Saleh Bin Omer v. Vijayachand Sirimal, AIR 1974 Orissa 17,Chairman Notified Area Council, Bhanjanagar v. Kudini Lingaraju Patra and AIR 1974 Karnataka 123, Shankar Bhatt v. Bhima Bhatt, allowed the application under Section 151 CPC.

4. The application which was moved before the trial court stated that ihe plaintiff wanted to prove eight documents which were already on record but which could not be exhibited and proved due to oversight as there was a large number of documents on the record. Learned counsel for the petitioner submitted that the oversight of the advocate would not entitle the plaintiff to fill up the lacuna. To this, my reply would be that a party should not suffer because of lapse on the part of an advocate. When there was oversight by the advocate of the plaintiff, the Bank should not suffer. Secondly, it is not a suit filed by an individual but filed by a Bank in which no personal interest of any person on behalf of the plaintiff is involved. Therefore, the argument that the application was moved with oblique motive is not acceptable. In Steelage Industries Limited case, (AIR 1992 Bom 406) (supra) the case was under Rent Act for possession on the ground of bona fide requirement. The advocate in charge of the case met with an accident on his way to court and examination in chief of the plaintiff was conducted by another advocate on some date in absence of advocate in charge without putting essential questions on bona fide requirement. Witness was also cross examined. The application for permission to supplement examination in chief was filed. It was held that under inherent powers plaintiff's advocate cannot be allowed to conduct examination as that would amount to circumventing provisions of Code instead it was held that the proper order would be after cross examination is completed court should recall plaintiff and put to her questions in relation to bona fide requirement as contained in plaint and thereafter allow cross examination in respect thereof. Even in this citation substantial justice was allowed to be done.

5. In Ram Sahai v. Kuberdan, (1956 Raj LW 306) (supra) it was held that certainly Order 18 Rule 17 authorises a court to recall a witness but for the purposes of putting any questions which the court itself might think necessary. It does not authorise a party to have a witness, whom he has already cross examined, recalled for the purpose of further cross examination. This citation obviously does not apply to the case in hand because here the plaintiff is himself recalling the witness because certain documents were not exhibited due to the lapse on the part of the advocate. In Shyamapada Neogy's case, (1967 (71) Cal WN 747) (supra) it was observed that it is only under special circumstances that such an order can be passed. I am of the view that when the court below after having considered ail the points has allowed the application under Section 151 CPC, the order should not be interfered with as no prejudice is, being caused to the defendant as they have been compensated by payment of cost of Rs. 2,000/-and will have opportunity to cross examine witnesses. The trial court has not committed an error of jurisdiction.

6. Consequently, there is no force in this revision and the same is hereby dismissed at the admission stage.