Madhya Pradesh High Court
Bhushanlal Fundey vs Smt. Radha Bai on 2 January, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 2 nd OF JANUARY, 2024
MISC. PETITION No. 5527 of 2022
BETWEEN:-
1. BHUSHANLAL FUNDEY S/O FAGULAL FUNDEY,
AGED ABOUT 77 YEARS, OCCUPATION:
AGRICULTURIST KADKANA TEHSIL KIRNAPUR
DISTT. BALAGHAT (MADHYA PRADESH)
2. BHUMESHWAR FUNDEY S/O SHRI FAGULAL
FUNDEY, AGED ABOUT 60 YEARS, OCCUPATION:
AGRICULTURIST R/O KADKANA TEHSIL
KIRNAPUR DISTRICT BALAGHAT (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI ABHIJIT BHOWMIK - ADVOCATE)
AND
1. SMT. RADHA BAI W/O GANPATRAO BAHEKAR,
AGED ABOUT 62 YEARS, VILLAGE JAMDI TEHSIL
KIRNAPUR DISTT. BALAGHAT (MADHYA
PRADESH)
2. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR BALAGHAT DISTRICT BALAGHAT
(MADHYA PRADESH)
3. SUB REGISTRAR REGISTRATION OFFICE
B ALAGHAT OFFICES TEHSIL AND DISTRICT
BALAGHAT (MADHYA PRADESH)
.....RESPONDENTS
(BY SANJAY SARVATE - ADVOCATE FOR THE RESPONDENT NO. 1 AND
SHRI NITIN GUPTA - DEPUTY GOVERNMENT ADVOCATE FOR THE
RESPONDENT NO.2 & 3- STATE)
This petition coming on for admission this day, th e court passed the
following:
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 02-01-2024
19:07:34
2
ORDER
This petition is filed by the plaintiffs being aggrieved of order dated
01.11.2022, passed by learned VI Civil Judge, Junior Division, Balaghat (M.P.),
in RCSA No.24/2018, whereby, learned trial Judge has rejected an application
under Order 18 Rule 17 of Code of Civil Procedure (hereinafter referred to as
'CPC' for short).
2. Petitioner has placed reliance on the application Annx.P/4 to point out that
plaintiffs had called the Bank Manager Shri Ramadhar, who was working as
Manager in the AllahabadBank to prove their case that they are the joint owners
of the land and they had taken a loan on the said land in the year 2008.
3. Thereafter, an application as contained in Annx.P/4 was filed under Order
18 Rule 17 CPC to recall the Manager to prove the signatures of the plaintiffs
on the loan documents.
4. It is submitted that trial Court had vide order dated 01.11.2022 Annx.P/5,
has arbitrarily rejected the application recording a finding that recall of witness
was sought to mark exhibit on the documents and, therefore, for the wrong
reasoning the impugned order has been passed, that needs to be set aside and is
set aside.
5. Shri Sanjay Sarvate, learned counsel for the respondent No.1, submits that
the provisions contained in Order 18 Rule 17 CPC are to aid and assist the
Court and not to fill in the lacuna and, therefore, reliance placed by Shri Abhijit
Bhowmik, on the judgment of Rajasthan High Court in Jodhpur Gums and
Chemicals Pvt. Ltd. Vs. Punjab National Bank and others (AIR 1999
Rajasthan 38) is of no assistance to the petitioner.
6. After hearing learned counsel for the parties and going through the record,
it is evident that plaintiffs wish to recall the witness i.e. the Manager of the Bank
to put questions to him as to who were the persons who had obtained loan and
to get their signatures verified on the loan documents.
7. Admittedly, Manager of the Bank was called and was examined by the
plaintiffs. The provisions contained in Order 18 Rule 17 are not meant to fill
lacuna in the case. The law in this regard is that it is the requirement of the
Court that it may, at any stage of the suit, recall any witness who had been
examined earlier and to put to him such questions as it may deem fit. The said
provision does not permit a party to re-examine any witness to fill the lacuna in
the case. Such a provision is merely an enabling provision for the convenience
of the Court as held in Surinder Kaur Vs. Karanbir Singh (AIR 2004
Punjab & Haryana 377). When examined from this aspect, then law laid
down in case of Jodhpur Private Ltd. (supra), then there the facts are
different. There some documents were already on record, but they could not
be exhibited and proved due to oversight of advocate. No personal interest of
any person on behalf of the plaintiffs involved and, therefore, order for re-
summoning the witness was upheld.
8. But, in the present case, facts are different. Witness admittedly said that
loan was not extended in his tenure and, therefore, he does not recognize the
signatures of the borrowers. Once this aspect was brought on record in cross-
examination of the bank witness, then the duty on the plaintiffs was to re-
examine him and put such questions that may bring out the truth as to who were
the borrowers. For the failure of the plaintiffs' counsel to re-examine the
witness and bring out the truth since law is that no witness can be recalled to fill
the lacuna, this Court is of the opinion that impugned order for a different
reason does not call for any interference.
9. In view of above, petition fails and is dismissed.
(VIVEK AGARWAL)
JUDGE
A.Praj.
