Delhi High Court
Manohar Radios & Anr. vs Nirmal Electronics & Ors. on 10 February, 2015
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 10.02.2015
+ CS(OS) No.1018 of 2005
MANOHAR RADIOS & ANR. ..... Plaintiffs
Through: None.
versus
NIRMAL ELECTRONICS & ORS. ..... Defendants
Through: Mr. Mohan Vidhani, Adv.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (OPEN COURT)
OA No.53/2015
1. This chamber appeal is directed against the order of the learned
Joint Registrar passed on 21.1.2015, whereby the defendants'
application (IA No.1430/2015) under Order XVIII, Rule 17 of the
Code of Civil Procedure, 1908 for recalling PW-1 was rejected.
2. The appellants had contended that while preparing for recording of
their evidence, they went through the cross-examination of PW-1
and realised that some documents had not been confronted to the
witness which needed to be done, otherwise the defendants' case
would suffer irreparably. It was also contended that no new
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OA No.53 of 2015 in CS (OS) No.1018 of 2005 Page 1 of 5
documents would be put to PW-1 but questions would be put only
apropos the documents already on record.
3. The learned Joint Registrar took into consideration that issues in
the case were framed on 12.4.2010. The plaintiffs' evidence was
filed on 27.7.2010 and the examination-in-chief was conducted on
30.8.2011. The said witness was cross-examined at length on four
(4) dates, i.e., 30.8.2011, 7.8.2013, 15.7.2014 and 19.8.2014; there
was no dispute that ample opportunities had been accorded to the
defendants to cross-examine the witness but only upon change of
counsel was the application for recall of the witness been filed.
4. The defendants had relied upon the principle that a party should
not suffer because of lapse on part of its counsel. To support their
contention that questions could be put to witnesses where a lapse
had occurred due to counsel or where documents were not
exhibited due to oversight, the appellats had relied upon two
judgments.1 The learned Joint Registrar distinguished the two
cases on the ground that in the first case relied upon, the
permission was granted because some questions which were the
1
AIR 1981 Punjab and Haryana 157; and AIR 1999 Rajasthan 38
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OA No.53 of 2015 in CS (OS) No.1018 of 2005 Page 2 of 5
requirement of law were left out to be put to the witness; and in the
subsequent case, an opportunity was given for exhibiting and
proving the documents left out as the party involved was a bank
and public money was involved, whereas in the present case
neither were the defendants a public institution dealing with public
money nor were the questions, which the counsel for the
defendants sought to be put to PW-1 was a requirement under law.
5. The learned Joint Registrar also examined the records and
concluded that the cross-examination of PW-1 on 15.7.2014 would
show that queries with respect to transactions with different firms
had been put to the witness; that he had earlier been questioned
regarding purchase of goods under different trademarks; that
simply because a subsequent counsel felt that some queries have
been left out in the cross-examination who had otherwise been
cross-examined exhaustively, would not accord a ground in law for
recalling of the plaintiffs' witness for cross-examination. The
learned Joint Registrar reiterated the settled law that a witness
cannot be recalled for filling up the lacuna left in the cross-
examination of a witness.
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OA No.53 of 2015 in CS (OS) No.1018 of 2005 Page 3 of 5
6. The learned counsel for the appellants/defendants submits that the
real purpose of cross-examination of a witness is to help the Court
to remove any kind of ambiguity regarding the evidence placed by
the parties so that proper adjudication of the disputes between the
parties can be reached; that the case is at an initial stage and the
defendants are yet to adduce their evidence; that the lapse on part
of the previous counsel in not putting pertinent questions to the
plaintiffs' witness would result in not putting forth the defendants'
case fully, effectively and in its entirety and to prevent such an
eventuality, in the interest of justice, the witness should be recalled
subject to terms for such inconvenience, if any.
7. This Court is unpersuaded by the aforesaid contention of the
learned counsel for the appellants. The evidence of the plaintiffs'
witness (PW-1) was completed in four (4) years. His affidavit was
filed on 27.7.2010 and his cross-examination started on 30.8.2011
and ended on 19.8.2014. The defendants had more than 36 months
to study their case, formulate their questions and get their best
result out of the cross-examination. Having been accorded due
and sufficient opportunity to cross-examine the plaintiffs' witness,
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they cannot now be permitted to recall the said witness at a stage
when they have to lead their evidence especially at a stage where
the plaintiffs' evidence was closed on 19.8.2014. Change of
counsel does not itself constitute a ground for recalling of
witnesses for further cross-examination. The precedents relied
upon by the appellants have been rightly distinguished. There is
no cause for interference with the reasoning and conclusion in the
impugned order.
8. The appeal is without merit and is accordingly dismissed.
FEBRUARY 10, 2015 NAJMI WAZIRI, J.
b'nesh
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