National Agro-Chemical ... vs National Research Development ...
2005 Latest Caselaw 485 Del

JUDGMENT

Vijender Jain, J.

1. This appeal impugns the order dated 4.2.2005 passed by the learned Single Judge, dismissing the application of the appellant-defendant, under Order xviii Rule 17 CPC for recall of a witness. It was contended before us that the application was necessitated due to the fact that the cross-examination of Mukund Mehta, PW-1 was not concluded. Inadvertently, the Court did not record the word "deferred" and, therefore, the same was understood to have been concluded as on 24th January, 2002 when the statement of PW-2 was commenced on priority because he was primarily to depose on some official documents. Learned counsel for the appellant has contended that only one opportunity be granted for one day to cross-examine PW-1 as he was the main witness on behalf of the respondent otherwise the appellant would suffer irreparable injury and Court will also not be able to adjudicate effectively the matter in controversy, without the complete cross examination of PW-1 on record. On the other hand, Mr. Bhardwaj learned counsel for the respondent has contended that in view of the order passed by the learned Single Judge on 15th May, 2003 as well as the order passed by the learned Single Judge on January 23, 2004, there was no other option before the third learned Single Judge except to have declined the application for recalling PW-1, for cross-examination. Mr. Bhardwaj learned counsel for the respondent also highlighted the observation of the learned Single Judge in the impugned order that in the application the appellant failed to give the essential questions which were to be put to the witness in cross-examination and, therefore, there was no reason to recall the said witness. Learned counsel for the respondent also vehemently contended that after amendment of the CPC the Legislature in its wisdom has repealed the earlier provision of Order xviii Rule 17A CPC and, therefore, there was no right vested in a party to recall the witness for cross-examination. Emerging from the said situation, another argument raised by the learned counsel for the respondent is that the application of the appellant as a matter of fact could not lie under the provisions of Order xviii Rule 17 of the CPC, as it stands today.

2. We have given our careful consideration to the arguments advanced by the learned counsel for the parties. As a matter of fact the whole controversy started in view of the order passed on 15th May, 2005. As the learned Single Judge in his order which is at page 85-J&K of the paper book observed that cross examination of PW-1 "seems" to have been concluded on 24th January, 2002 and since examination-in-chief of PW-2 had also been recorded on 24th January, 2002, the learned Single Judge opined that PW-1 could not be put to any further examination at which point learned counsel for the appellant-defendant made a statement for making an application seeking recall of PW-1 for the purpose of cross-examination.

3. This brings us to the question:- What is the purpose for adducing evidence and examination of witnesses? Should a party be allowed to suffer either if certain words have been omitted from the order or if there is any procedural lapse on the part of the counsel. Rules of procedure are meant to advance the cause of justice. In civil litigation for the lapse of one party other party can be easily compensated by payment of costs. When a party is aggrieved on account of not having full opportunity of eliciting the truth by way of cross-examination, substantial justice would be a casualty, if the party is not given an opportunity of recalling that witness for cross-examination. Of course the facts and circumstances of each case are very material. The Court has power to see, whether a party which makes such an application, is moving the same for the purpose of delaying the proceedings or the application is malafide or would result in the abuse of the process of law, then the Court can dismiss any such application. In the case before hand, no such intentions are discernible from the application, conduct of the applicant or the impugned order. Regarding non-disclosure of the questions to be put to the witness, in our view the questions need not be written in the application as that may defeat the very purpose of cross-examination.

4. We find no force in the argument of the learned counsel for the respondent that in view of the amendment in the CPC a witness cannot be recalled by the party under any circumstances. Order 17A CPC as it stood prior to amendment is as under:-

"Production of evidence not previously known or which could not be produced despite due diligence.

Where a party satisfies the Court that after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when the party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just."

5. Mr. Bhardwaj learned counsel for the respondent has contended that in view of the repeal of 17A CPC, there is no right left with the party to recall a witness for cross examination. The legislature in its wisdom has repealed 17A CPC because that right was to be exercised in a case where a party had moved an application for production of evidence on the ground that that evidence was not previously known to him and in spite of the best efforts put in by that party by exercising due diligence the evidence could not be produced. The legislature in its wisdom to cut the delays, has repealed the said Section. To our mind the said provision was repealed to meet different facts and circumstances, i.e., where the applicant might be on fault or the applicant was intending to delay the disposal and was not diligent.

6. Now, let us look at Order xviii Rule 17 CPC which is as follows:-

"Court may recall and examine witness:- 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."

7. As a matter of fact, the harmonious construction of procedural rules leaves no doubt that Court at any stage of a suit may recall any witness who has been examined and we may say that the examination includes cross-examination as well. The aforesaid rule postulates that when a witness has been examined, the Court at any stage of the suit may recall the said witness but that final stage of examination ( which includes complete cross-examination) is under a question mark in this case. Therefore, in such cases, in our view, the Court will have the power to order for recall of such a witness for the purpose of examination which includes cross-examination, when it is brought to the notice of Court. In the case before hand, we are examining whether the witness had been examined in the real sense of term i.e. whether PW-1 was completely cross-examined.

8. In the impugned order in spite of the direction passed on 23rd January, 2004, no finding has been given by the learned Single Judge on the application of the appellant as to whether the cross-examination was concluded or not. Only after specifically deciding the said controversy, the question of recall could be dealt with. The cross-examination of PW-1 on record prima facie shows that it was not concluded and even the learned Single Judges have observed that it "seems" or it gives an "impression" that cross-examination was concluded. So the doubts are apparent in the learned Single Judges' orders.

9. As stated earlier in order to advance cause of justice and in view of the fact that no intentional delay has been caused by the appellant, the respondent-opposite party can be compensated by way of costs. We, therefore, set aside the impugned order and give opportunity to the appellant to cross-examine PW-1, on one date of hearing.

10. Mr. Bhardwaj very fairly stated that he will produce PW-1 and case may be fixed before the date for the evidence of the appellant on 16.8.2005, before the Joint Registrar.

11. Let the cross-examination of PW-1 be recorded on 16.4.2005, by the Joint Registrar. Efforts be made to conclude the cross-examination on the same date.

12. Appellant will compensate the respondent with Rs.10,000/- as costs.

13. The appeal is accordingly allowed.