Judgment 1 wp5492.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5492 OF 2016
Sau. Nandatai w/o. Vasantrao Deoghare,
Aged about 49 years, Occ.: Household,
R/o. Near State Bank of India, Warud,
Tq. Warud, District : Amravati.
.... PETITIONER.
// VERSUS //
1. Shri Rahul Vitthalrao Mankar,
Aged : Adult, Occ. Education,
2. Shri Amol Vitthalrao Mankar,
Aged : Adult, Occ. Education,
3. Shri Vitthal Fakirji Mankar,
Aged about major, Occ. Agriculturist,
All the above respondents 1 to 3
residents of Sati Chowk, Warud,
Tq. Warud, District : Amravati.
4. Learned Civil Judge, Junior Division,
Warud, District : Amravati.
.... RESPONDENTS
.
___________________________________________________________________
Ms R.D.Raskar, Advocate for Petitioner.
Smt S.W.Deshpande, Advocate for Respondent Nos.1 to 3.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : NOVEMBER 06, 2017.
ORAL JUDGMENT :
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Judgment 2 wp5492.16.odt
1. The learned advocate for the petitioner seeks leave to delete name of the respondent No.4.
Leave granted.
2. Heard.
3. RULE. Rule made returnable forthwith.
The petitioner/ original plaintiff has challenged the order passed by the trial Court allowing the application filed by the defendant under Order 18 Rule 17 of the Code of Civil Procedure, praying that the plaintiff be recalled to enable the defendant to cross-examine the plaintiff in respect of the document (Exh.41).
4. The learned trial Judge has recorded that Order 18 Rule 17 of the Code of Civil Procedure empowers the Court to recall any witness at any stage and has allowed the application.
Order 18 Rule 17 of the Code of Civil Procedure reads as under: "17. 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."
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Judgment 3 wp5492.16.odt It is well settled that while exercising jurisdiction under Rule 17 of Order 18 of the Code of Civil Procedure, the Court can recall any witness who is examined, however, it is only to enable the Court to put questions to that witness. This provision does not enable the party to seek recall of the witness, who is examined, for further cross-examination.
5. I find that the learned trial Judge has committed an error by overlooking that the provisions of Rule 17 of Order 18 of the Code of Civil Procedure does not enable the Court to recall any witness who is examined, for further examination by a party. However, such exercise can be undertaken under Section 151 of the Code of Civil Procedure as laid down in the judgment given in the case of K.K. Velusamy vs. N. Palanisamy, reported in (2011) II SCC 275. This judgment is fairly pointed out by the learned advocate appearing for the petitioner. But, in the present case, it will have to be examined whether the witness can be recalled by exercising jurisdiction under Section 151 of the Code of Civil Procedure.
6. In the above facts, following order is passed to sub-serve the ends of justice:
i) The impugned order is set aside.
ii) The application filed by the defendant under Order 18 Rule 17
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Judgment 4 wp5492.16.odt
iii) The learned trial Judge shall decide the application afresh after hearing the parties, according to law and as per the proposition laid down in the judgment given in the case of K.K. Velusamy .vs. N. Palanisamy;
Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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