Amalendu Bhunia And Another vs Sabita Sadhukhan And Others
2021 Latest Caselaw 3765 Cal

   3
14.07.2021

TN

CO No.1944 of 2019 IA No: CAN 1 of 2019 (Old No: CAN 9458 of 2019)

Amalendu Bhunia and another Vs.

Sabita Sadhukhan and others

Mr. Arun Pahari, Mr. Biswanath Samanta

.... for the petitioners

Mr. Krishna Das Poddar, Mr. Ayan Mitra

.... for the opposite parties

Learned counsel for the petitioners challenges

an order, whereby the defendants/petitioners'

application under Order XVIII Rule 17 of the Code of

Civil Procedure was rejected.

The short background of the case is that an

eviction suit bearing Ejectment Suit No. 16 of 2012

was filed by the plaintiffs/opposite parties, in which

initially a written statement had been filed. Thereafter,

evidence had been led by both the parties and

concluded. Subsequently, the suit was fixed for

arguments. At this juncture, the

defendants/petitioners filed an application under

Order VI Rule 17 of the Code of Civil Procedure for

amendment of their written statement, which was

allowed.

It is submitted by learned counsel for the

petitioners that the subsequent recall of the plaintiffs'

witnesses was essential in view of the amendment

having been allowed.

That apart, by placing reliance on Section 138 of

the Evidence Act, it is submitted that the court has

ample power to permit recall of witness at any stage of

the suit. Order XVIII Rule 17 of the Code of Civil

Procedure, it is submitted, also confers such power on

the court.

Learned counsel for the petitioners places

reliance on a coordinate Bench judgment of this court,

reported at 2000 Cri LJ 1039 [State of West Bengal vs.

Arunesh Pathak and others], in support of the

proposition that the party who calls a witness has the

right to re-examine him on all matters arising out of

the cross-examination for the purpose of reconciling

any discrepancies that may exist between the evidence

on the examination-in-chief and that which has been

given in cross-examination; or for the purpose of

removing or diminishing any suspicion that the cross-

examination may have cast on the evidence-in-chief; or

to enable the witness to state the whole truth as to

matters which have only been partially dealt with in

cross-examination. The scope of recall of witness being

wide and it being one of the rights of the litigants to

elucidate previous evidence, it is contended that the

Trial Judge in the present case ought to have allowed

the application.

Learned counsel for the petitioners next relies

on K.K. Velusamy vs. N. Palanisamy, reported at (2011)

11 SCC 275, where it was held by the Supreme Court,

inter alia, that there is sufficient scope of production of

evidence at a later stage of the suit despite the deletion

of Order XVIII Rule 17-A of the Code of Civil

Procedure. In the said case, the Supreme Court also

considered the power under Order XVIII Rule 17,

which was held to be only for clarification to enable

the court to clarify any issue or doubt it may have in

regard to evidence led by parties by recalling any

witness so that the court itself can put questions to

such witness and elicit answers.

Learned counsel appearing for the

plaintiffs/opposite parties controverts the submissions

of the petitioners and contends that the entire

evidence of both sides had been concluded long back

in the year 2019. Thereafter, only at the argument

stage, the application for recall of witness was filed to

stall the proceedings.

That apart, it is argued by the learned advocate

for the opposite parities that the amended written

statement did not carry any new material to justify

recall of witnesses.

Upon hearing learned counsel for both sides, it

is perused, from the records and the copy of the

original written statement handed over by learned

counsel for the opposite parties, that the amendment

of written statement sought by the petitioners, which

was allowed at a belated stage of the suit, only

introduced cosmetic changes to the original pleadings

of the defendants and the premise of the original

pleadings remained the same. Hence, mere filing of the

amended written statement could not have created any

difference in the scope of adducing evidence in the

suit.

As far as the power to recall witnesses is

concerned, Section 138 of the Evidence Act, as well as

Order XVIII Rule 17 of the Code of Civil Procedure,

leave no doubt that such permission can be granted by

the court at any stage.

However, a composite reading of Section 138 of

the Evidence Act and Order XVIII Rule 17 of the Code

indicates that re-examination will be a matter of right,

only if the party calling the witness so desires.

In the present case, the plaintiffs' witnesses

were called by the plaintiffs/opposite parties, who do

not desire such re-examination. Hence, it cannot be

said that the re-examination sought by the defendants

is a matter of right for the defendants.

That apart, in K.K. Velusamy (supra), cited by

the petitioners themselves, the Supreme Court was

dealing with a different issue as regards the powers of

production of additional evidence still vested in the

court as a consequence of the deletion of Order XVIII

Rule 17-A from the Code. The Supreme Court, rather,

specifically observed in respect of Order XVIII Rule 17

that such power was not intended to be used to fill up

omissions in the evidence of a witness who has already

been examined.

The co-ordinate Bench judgment cited by the

petitioners has to be read in the context of Section 138

of the Evidence Act and the Supreme Court report,

apart from Order XVIII Rule17 of the Code.

Since the additional written statement did not

make out any conspicuously new case, in view of the

petitioners' admission in the application under Order

XVIII Rule 17 of the Code filed by the petitioners that

the previous learned advocate handling the matter had

not put certain pertinent questions to the P.Ws. in

their cross-examination, the recall now sought for

ought not to be permitted merely to give another

opportunity to the defendants to fill up the lacunae

and omissions in their initial evidence.

That apart, since the witness of the parties was

closed as long back as in 2019 and argument in the

suit commenced thereafter, there was no justification

for the trial court to allow the belated prayer for recall,

which is apparently intended to stall the eviction suit,

which is pending for several years now.

As regards the previous application filed by the

petitioners in the court below under the same

provision, that is, Order XVIII Rule 17 of the Code

having been not pressed, learned counsel appearing

for the petitioners submits that the court below

assured the petitioners that the reliefs sought therein

would be taken care of. However, such assurance, if

any, could not create a right in favour of the

defendants/petitioners.

In any event, even without considering the effect

of not pressing the previous application under Order

XVIII Rule 17 of the Code without liberty to file afresh,

the present application for recall of witness was rightly

refused by the trial court in view of the other

considerations discussed above..

Accordingly, the revisional application fails.

CO No.1944 of 2019 is dismissed on contest,

without any order as to costs. The order impugned in

the revisional application is affirmed.

IA No: CAN 1 of 2019 (Old No: CAN 9458 of

2019) is disposed of accordingly.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)