Delhi High Court
Tarun Khurana vs Krishna Mittal on 16 July, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) 337/2012
Date of Decision: 16.07.2012
TARUN KHURANA ...... PETITIONER
Through: Mr.Nitin Mittal, Advocate.
Versus
KRISHNA MITTAL ......RESPONDENT
Through: Mr.Sanjay Aggarwal, Advocate.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition is filed under Article 227 of the Constitution
impugning the order dated 14.11.2011 of Civil Judge in Suit No. 367 of
2010 whereby an application under Section 137 of the Indian Evidence
Act of the plaintiff (the respondent herein) was allowed.
2. The petitioner is a tenant/defendant in the suit which has been
filed against him by the respondent/plaintiff. The plaintiff had
examined PW2 Ashwani Kumar Mittal as one of his witnesses. The
plaintiff/respondent had moved application under Section 137 of the
Indian Evidence Act for re-examination of PW2 which was allowed by
the learned Civil Judge vide the impugned order against cost of Rs.
500/-. Thereafter, this PW2 was recalled and re-examined on 02.12.2011
in view of the order dated 14.11.2011.
3. The impugned order has been assailed by the petitioner on the
ground that the re-examination of PW2 was unwarranted and has caused
prejudice to the petitioner/defendant. It is also submitted by the learned
counsel for the petitioner that no reason has been given by the learned
Civil Judge while recalling PW2 for re-examination.
4. I have heard learned counsel for the petitioner as also the
respondent/plaintiff. As regard the power of the court to recall any
witness for re-examination, the same is contained in Section 138 of the
Indian Evidence Act. This provision also creates a distinct right of a
party to call a witness for re-examination. There is, however, a caveat
that such re-examination is to be directed to the explanation of the
matter referred to in cross examination; and if any new matter is
introduced in re-examination, that has to be with the permission of the
court and the opposite party would have further right to cross examine
the witness upon that new matter. That being the position of law, there
cannot be any dispute that the re-examination of a witness could be for
explanation of the matter referred in cross examination and also, with
the permission of the court to the new matter.
5. It is submitted by the learned counsel that this PW2 initially stated
that at the time of execution of rent receipt Ex.PW1/2, besides him, his
mother and daughter were present. On this, he filed an application
under Order 18 Rule 17 CPC. Thereafter, the plaintiff/respondent filed
application under Section 137, Indian Evidence Act for recalling PW2
for re-examination. In the re-examination that was conducted on
02.12.2011, PW2 has stated about the presence of his mother and wife at
the time of execution of recent receipt Ex.PW1/2. He has clarified that
his daughter was not present and it was wrongly stated by him. It was
to this part of the re-examination of PW2, to which, exception was made
by the learned counsel for the petitioner. I do not see the petitioner to be
having any cause of exception or objection to the re-examination of the
PW2 for the purpose of clarification of his earlier cross examination.
The concern of the petitioner can be well taken care of by affording him
an opportunity of further cross examination of PW2 as regard to the
explanation/clarification given by him regarding the presence of his
mother and wife instead of his daughter at the time of execution of
Ex.PW1/2. The petitioner had declined to have the opportunity to cross
examine this witness on 02.12.2011, since he had assailed the said order
in the instant petition. Now, in interest of justice, he is being afforded
one opportunity to cross examine PW2 confined to his re-examination
conducted on 02.12.2011.
6. With these observations, the petition stands disposed of.
M.L. MEHTA, J.
JULY 16, 2012/akb
