Smt. Gayatri Sarma vs Jagmohan Sureka
2022 Latest Caselaw 3243 Gua

                                                                    Page No.# 1/6

GAHC010079342022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : CRP(IO)/89/2022

             SMT. GAYATRI SARMA
             W/O LT. RADHESHYAM SARMA, PROP. OF MILAP CLOTH STORE,
             CHAPAGURI ROAD, NORTH BONGAIGAON, P.S. AND DIST-BONGAIGAON,
             ASSAM, PIN-783380



             VERSUS

             JAGMOHAN SUREKA
             S/O NATHMAL SUREKA, R/O WARD NO. 8, PAGLASTHAN, CHAPAGURI
             ROAD, NORTH BONGAIGAON, P.S. AND DIST-BONGAIGAON, ASSAM, PIN-
             783380



Advocate for the Petitioner   : MR. M U MAHMUD

Advocate for the Respondent : MR. A SATTAR

BEFORE THE HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY Order

26.08.2022

Heard Mr. MU Mahmud, learned counsel for the petitioner. Also heard Mr. A Sattar, learned counsel for the respondent.

Page No.# 2/6

2. This petition is filed under Article 227 of Constitution of India assailing order dated 06.04.2022 passed by the learned Munsif, Bongaigaon in petition 732/2022 filed in TS No. 160/2021. By the said application, the defendant petitioner sought 're-cross- examination' of the plaintiff's witnesses.

3. The brief fact of the case is as under:

(i) The petitioner, who is a tenant of an Assam type room measuring 15 ft X 26 ft front side and 15 ft X 29 ft backside belongs to the present respondent.

(ii) The present respondent filed the connected suit for eviction of the present petitioner on the ground of default in payment of rent and for bona-fide requirement.

(iii) The suit proceeded and the plaintiff's witnesses were examined, cross- examined and discharged.

(iv) Thereafter, the defendant/ present petitioner adduced DWs. DWs were cross-examined and discharged.

(v) After evidences were led and closed, the suit was fixed for final argument on 09.05.2022.

(vi) Thereafter, the present petitioner filed an application with a prayer to allow to re-cross-examine/ further cross-examine the plaintiff's witnesses in exercise of power under Order 18 Rule 17 read with Section 151 of the CPC.

4. The basic grounds of filing such application are pleaded at paragraph 3 of the said application, which is quoted hereinbelow:

"3. That though the said PWs were cross examined, but some important questions are yet to be cleared by re-cross examination/ further cross-

Page No.# 3/6

examination the said PWs regarding bonafide requirement of the suit premises. In such situation re-cross examination/ further cross-examination of the said PWs is highly required for the ends of justice. If your honour does not allow the re-cross examination/ further cross-examination the said PWs, it can possibly will suffer from an irreparable loss by the defendant."

5. A bare reading of the aforesaid pleading shows that said application was filed on the following counts:

a. Some important questions are required to be cleared by re-cross- examination;

b. Such important questions relates to bona-fide requirement of the suit premises.

c. If such prayer is not allowed the defendant will suffer irreparable loss and injury.

6. After hearing the parties, the learned trial court rejected the aforesaid application by the impugned order dated 06.04.2022 for the following reasons:

(i) Cross-examination of PWs were concluded on 17.08.2017. Subsequently, cross of DWs also concluded.

(ii) Cross-examination of PWs shows that questions were put regarding bona- fide requirement.

(iii) The petition is not clear about the points on which the defendant wants to further cross-examine the plaintiff's witnesses.

7. Mr. Mahmud, learned counsel for the petitioner while assailing the order submits that Order 18 Rule 17 is akin to the power of Order 47 and power under Page No.# 4/6

Order 47 is wide enough and the word 'sufficient' used in Order 47 Rule 1 of the CPC is wide enough to include a power to correct miss-concept of fact or law by a court or even by an Advocate. He further submits that it was a mistake on the part of the Advocate in not explaining for what purpose such re-cross-examination was sought for and for such mistake on the part of the Lawyer, the petitioner cannot be allowed to suffer and therefore the court ought to have exercised its power in proper manner under Order 18 Rule 17 of the CPC. In support of his contention, Mr. Mahmud relied upon the judgment of the Hon'ble Apex court in Vadiraj Naggappa Vernekar (Dead) Through LRS vs. Sharadchandra Prabhakar Gogate reported in (2009) 4 SCC 410 and in Board of Control for Cricket in India and Another vs. Netaji Cricket Club and Others reported in (2005) 4 SCC 741.

8. Per contra, Mr. Sattar, learned counsel for the respondent submits that power under Order 18 Rule 17 of the CPC cannot be exercised to fill up the lacunae and can be exercised for proper determination of the issues. Mr. Sattar further submits that the present application which has rightly been rejected by the learned trial court as the said application do not disclose anything so as to allow the learned trial court to exercise its power under Order 18 Rule 17. The learned trial court was correct in holding that question of bona-fide requirement was duly put during the cross- examination of PWs, Mr. Sattar, learned counsel submits. Therefore, there is no jurisdictional error on the part of the learned trial court and accordingly this court may not to exercise its power under Article 227 of the Constitution of India, submits the learned counsel. Accordingly, Mr. Sattar submits that this petition deserves to be dismissed.

9. I have given anxious consideration to the submissions made by the learned counsels for the parties. A bare perusal of Order 18 Rule 17 of the CPC shows that the Page No.# 5/6

said provisions confers jurisdiction upon a court to recall a witness for clarifying any doubt and put such question for the said purpose. The Hon'ble Apex Court in the case of Vadiraj Naggappa Vernekar (Dead) Through LRS vs. Sharadchandra Prabhakar Gogate reported in (2009) 4 SCC 410 laid down the principle pertaining to Order 18 Rule 17 CPC, which can be summarized as follows:

(i) Application can be filed by the parties to recall witnesses under Order 18 Rule 17 of the CPC as the purpose of said Rule is to enable a court to clarify any doubt which it may have with regard to the evidence led by the parties.

(ii) The provisions of Order 18 Rule 17 are not intended to be used to fill up omission in the evidence of a witness who has already been examined.

(iii) The power under the said provisions is to be sparingly exercised in appropriate cases and not as a general Rule merely on the ground that such recalling shall not prejudice the other party.

(iv) Such power is to be invoked not to fill up the lacunae in the evidence of the witnesses, which have already been recorded but to clear any ambiguity that may have been arises during the course of his examination.

10. In the aforesaid settled proposition of law now, let this court now examine the present case. As discussed and quoted hereinabove, the paragraph 3 of the application filed under Order 18 Rule 17 of the CPC in no unambiguous term shows that the petitioner want to fill up the lacuna of not asking certain question during cross-examination. The said petition also discloses not a single criteria as discussed hereinabove and laid down by the Hon'ble Apex Court, so that the PWs can be recalled.

11. The judgment relied on by the learned counsel for the petitioner Mr. Mahmud is Page No.# 6/6

totally on a different factual background and different question of law and therefore in the considered opinion of this court those cited cases are not at all relevant for the determination of the present case more particularly in view of the pleadings made in application under Order 18 Rule 17 of the CPC.

12. In that view of the aforesaid reason, this court is of the considered opinion that the petitioner has failed to make out any case of recalling of witnesses for re-cross- examination under Order 18 Rule 17 of the CPC and accordingly this present petition lacks of merit and deserves to be dismissed. Accordingly, same is dismissed, however without any order as to cost.

JUDGE

Comparing Assistant