Gujarat High Court
Ismailbhai Mahammadbhai Patel vs Rameshbhai Nagjibhai Patel on 3 August, 2023
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6574 of 2019
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ISMAILBHAI MAHAMMADBHAI PATEL
Versus
RAMESHBHAI NAGJIBHAI PATEL
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Appearance:
KAUSHAL H PATEL(9328) for the Petitioner(s) No. 1
MR JAMSHED KAVINA, ADVOCATE FOR MR SP MAJMUDAR(3456) for the
Petitioner(s) No. 1
MR KASHYAP R JOSHI(2133) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 03/08/2023
ORAL ORDER
1. Challenge in this petition under Article 227 of the
Constitution of India is to the order dated 16.03.2017 and
19.11.2018 passed by the Courts below, by which the
prayer for recalling of witnesses for cross-examination
made by the petitioners-defendants was turned down by
the trial Court as well as Appellate Court.
2. This Court has heard learned counsel Mr. Jamshed Kavina
for learned counsel Mr. S.P. Majmudar and Mr. K.R. Joshi
for the respective parties.
3. The respondent-original plaintiff filed a suit for
declaration, injunction and cancellation of the registered
sale-deed against the present petitioners-original
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defendants and the same is registered as Regular Civil
Suit No.160 of 2015. After completion of the pleadings,
the trial Court framed the issues. The respondent-plaintiff
Ramesh Patel and his two witnesses were examined at
Exh.43, 74 and 78 respectively. After closing of the
evidence, the suit was posted for the evidence of the
defendant. The defendant filed his affidavit in the form of
chief examination. Meanwhile, he has changed his
advocate. In these circumstances, the defendant-
petitioner moved an application Exh.86, under Section
151 of the Civil Procedure Code, praying inter-alia that,
some of the questions still required to be asked to the
witnesses and therefore, the witnesses i.e. plaintiff and
his two witnesses may be recalled for the fair trial and to
establish his defense. He has also moved an application
Exh.92 for production of documentary evidence and the
same was allowed by the trial Court. The trial Court after
hearing the parties, found that, the application for
recalling of the witnesses is not bonafide and with a view
to protract the trial, the application is being filed, as a
result, the Court below has rejected the application. The
said order was challenged by filing the appeal before the
District Court. The District Court upheld the order of the
trial Court observing that, no sufficient grounds exist to
recall the witnesses.
4. Being aggrieved with the orders passed by the Courts
below, the petitioner-defendant has come up before this
Court by invoking supervisory jurisdiction of this Court.
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5. Mr. Jamshed Kavina, learned counsel for the petitioner
has submitted that, the Courts below have not properly
appreciated the factual background of the case and due
to change of the counsel on record, the defense set up in
the written statement was required to be established
either by adducing the evidence or in the cross-
examination of the witnesses. He further pointed out
that, the cross-examination is an acid test of the
truthfulness of the statement made by the witnesses on
oath in examination in chief, the objects of which are to
show that, witnesses unworthy of belief and to test his
veracity and to sake his credibility. In the facts of the
present case, on the vital issue, the earlier advocate did
not properly cross-examined the witnesses and therefore,
without any repetition of earlier questions, the defendant
shall given an opportunity to cross-examine the
witnesses for the purpose as said above.
6. In the aforesaid contention, learned counsel Mr. Kavina
submitted that, the Courts below have not properly
exercised their jurisdiction and failed to exercise judicial
discretion to recall the witnesses. In support of this
contention, he made a reference to the judgment of the
Apex Court delivered in case of K.K. Velusamy vs. N.
Pallanisamy (2011) 11 SC 275, to submit that, where the
application for recalling of the witnesses is filed without
any ulterior motive and there are sufficient reasons to
recall the witnesses, the Court may grant permission to
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examine the witnesses and compensate the other side by
awarding appropriate cost and Court can fix the schedule
to complete the case.
7. Mr. Kavina, learned counsel under the aforesaid
circumstances prays that, the Court below without
considering the settled provisions of law on the aspect of
fair trial and the evidentiary value of the cross-
examination, rejected the application which has caused
great injustice to the right of the petitioner-defendant
and therefore, the orders impugned are not sustainable
in law and the same may be quashed and set aside.
8. On the other hand, Mr. Joshi, learned counsel countering
to the submissions, has stated that, the findings of the
Courts below are based on the evidence on record and
therefore, the prayer made for recalling the witnesses
with an intention to delay the trial. Thus, therefore, the
Courts below have rightly refused to recall the witnesses
and have not committed any error much less an error of
law can be said to have been committed, warranting
interference under supervisory jurisdiction of this Court.
9. Having heard the learned counsel for the respective
parties and on perusal of the impugned orders, this Court
is of considered view that, the orders impugned do no
suffer any infirmity so as to warrant interference in
exercise of supervisory jurisdiction under Article 227 of
the Constitution of India. Both the Courts below have
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categorically observed that, no sufficient grounds
pleaded to necessitate the further cross-examination of
the witnesses. Merely Court has permitted the defendant-
petitioner to produce one document that does not mean
that, Court should recall the witnesses. In the application
for production of documents, nothing being pleaded that,
for the purpose of further cross-examination of the
witnesses, leave may be granted to produce it. Thus,
record indicates that, the cross-examination of all the
witnesses being done at length by the earlier counsel of
the petitioner-defendant and therefore, in the absence of
any satisfactory explanation or reason for recalling the
witnesses, the Courts below while rejecting the
application. The permission, as sought, is granted, then it
is as good as denovo of the trial which cannot be
permitted. In the cited case K.K. Velusamy (supra), the
Apex Court has observed that, the power under Section
151 of Order 18 Rule 17 of the Code is not intended to be
used routinely, merely for asking. If so used, it will defeat
the very purpose of various amendments to the Code to
expedite the trial. It has further observed that, if the
application is found to be mischievous or frivolous or to
cover up negligence or lacuna, it should be rejected with
heave cost. Thus, on factual aspects, the cited judgment
would not rescue to the case of the petitioner herein, but,
it would rather applicable to the stand taken by the
respondent-plaintiff.
10. In light of the settled principle propounded by the
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Apex Court and considering the facts and circumstances
of the present case, in the considered view of this Court,
the impugned orders are just, proper and having been
passed in accordance with law and is supported by clear
cogent reasons. As the impugned orders does not suffer
from any jurisdictional error, the interference by this
Court is not warranted.
11. Petition is failed and is dismissed. Notice is discharged.
(ILESH J. VORA,J)
TAUSIF SAIYED
