Punjab-Haryana High Court

Lal Singh Through His Lr Mandeep Singh vs Hans Raj Grover on 2 May, 2024

Author: Alka Sarin

Bench: Alka Sarin

                                                                                     2024:PHHC:061008

                          IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                        117                                            CR No.766 of 2024 (O&M)
                                                                       Date of Decision : 02.05.2024


                        Lal Singh through his LR Mandeep Singh                            ....Petitioners

                                                           VERSUS

                        Hans Raj Grover                                                  ....Respondent


                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                        Present :    Mr. Karandeep Singh, Advocate for the petitioner.


                        ALKA SARIN, J. (Oral)

1. The present revision petition has been filed under Article 227 of

the Constitution of India challenging the order dated 19.10.2023 whereby

the application filed by the defendant-petitioner for recalling of the plaintiff-

respondent for further cross-examination has been dismissed.

2. The brief facts relevant to the present case are that the plaintiff-

respondent filed a suit for recovery of Rs.40,30,000/-. The plaintiff-

respondent stepped into the witness-box and was examined and cross-

examined on 06.10.2021 and was recalled for further cross-examination on

28.03.2022. The plaintiff-respondent was cross-examined at length by

counsel for the defendant-petitioner. After more than a year having elapsed,

an application was filed by the defendant-petitioner under Order 18 Rule 17

of the Code of Civil Procedure, 1908 for recalling the plaintiff-respondent

for further cross-examination. It was averred in the application that further

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cross-examination of the witness was necessary as certain material aspects

had come to the knowledge of the defendant-petitioner recently. Reply was

filed to the said application. Vide the impugned order the said application

was dismissed.

3. Learned counsel for the defendant-petitioner would contend

that after recording of the statements of the witnesses i.e. Bank Official and

Mandi Supervisor, he had come to know that the plaintiff-respondent has

two accounts, which fact was never put to the plaintiff-respondent in his

cross-examination.

4. Heard.

5. In the present case the plaintiff-respondent was examined and

cross-examined on 06.10.2021 and was recalled for further cross-

examination on 28.03.2022 when the plaintiff-respondent was cross-

examined at length by the counsel for the defendant-petitioner. The

application itself was filed after a lapse of almost a year of the cross-

examination of the plaintiff-respondent. The application was filed after DW1

and DW2 had been examined in evidence. By way of the present application

the defendant-petitioner is trying to fill in the lacunae in the case which

cannot be permitted in law. Once the plaintiff-respondent was examined and

cross-examined at length there was no question of the witness being recalled

merely on the ground that certain new facts had come to the knowledge of

the defendant-petitioner.

6. Order 18 Rule 17 CPC reads as under :

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"17. Court may recall and examine witness - The court

may at any stage of a suit recall any witness who has

been examined and may (subject to the law of evidence

for the time being in force) put such questions to him as

the court thinks fit."

7. Hon'ble Supreme Court in the case of Ram Rati Vs. Mange

Ram (D) Thr Lrs. & Ors. [2016 (2) RCR (Civil) 464], after considering

the various judgments, has held as under :

"12. In Vadiraj Naggappa Vernekar (Dead) Through

LRs. v. Sharadchandra Prabhakar Gogate 2009(2) RCR

(Civil) 508 : (2009) 4 SCC 410, this principle has been

summarised at paragraphs- 25, 28 and 29:

"25. In our view, though the provisions of Order

18, Rule 17 CPC have been interpreted to include

applications to be filed by the parties for recall of

witnesses, the main purpose of the said Rule is to

enable the court, while trying a suit, to clarify any

doubts which it may have with regard to the

evidence led by the parties. The said provisions are

not intended to be used to fill up omissions in the

evidence of a witness who has already been

examined.


                                                                          xxx







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28. The power under the provisions of Order 18,

Rule 17 CPC is to be sparingly exercised and in

appropriate cases and not as a general rule merely

on the ground that his recall and re-examination

would not cause any prejudice to the parties. That

is not the scheme or intention of Order 18, Rule 17

CPC.

29. It is now well settled that the power to recall

any witness under Order 18, Rule 17 CPC can be

exercised by the court either on its own motion or

on an application filed by any of the parties to the

suit, but as indicated herein above, such power is

to be invoked not to fill up the lacunae in the

evidence of the witness which has already been

recorded but to clear any ambiguity that may have

arisen during the course of his examination."

13. In K.K. Velusamy v. N. Palanisamy 2011(2) RCR

(Civil) 875 : 2011(3) Recent Apex Judgments (R.A.J.) 83

: (2011) 11 SCC 275, the principles enunciated in

Vadiraj (supra) have been followed, holding at

paragraphs 9 and 10:

"9. Order 18, Rule 17 of the Code enables the

court, at any stage of a suit, to recall any witness

who has been examined (subject to the law of

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evidence for the time being in force) and put such

questions to him as it thinks fit. The power to recall

any witness under Order 18, Rule 17 can be

exercised by the court either on its own motion or

on an application filed by any of the parties to the

suit requesting the court to exercise the said power.

The power is discretionary and should be used

sparingly in appropriate cases to enable the court

to clarify any doubts it may have in regard to the

evidence led by the parties. The said power is not

intended to be used to fill up omissions in the

evidence of a witness who has already been

examined. (Vide Vadiraj Naggappa Vernekar v.

Sharadchandra Prabhakar Gogate.)

10. Order 18, Rule 17 of the Code is not a

provision intended to enable the parties to recall

any witnesses for their further examination-in-chief

or cross-examination or to place additional

material or evidence which could not be produced

when the evidence was being recorded. Order 18,

Rule 17 is primarily a provision enabling the court

to clarify any issue or doubt, by recalling any

witness either suo motu, or at the request of any

party, so that the court itself can put questions and

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elicit answers. Once a witness is recalled for

purposes of such clarification, it may, of course,

permit the parties to assist it by putting some

questions."