On 7th October, a bench of Delhi High Court consisting of Justice Amit Bansal, while hearing a writ petition, held that it is a settled principle of law that the provisions of Order 18 Rule 17 of CPC cannot be used by a party to fill-in lacuna in his case. It was also stated that where a party was given full opportunity to cross-examine the witnesses of the other party and the said witnesses were exhaustively cross-examined then after a lapse of three years, the party cannot be allowed to fill-in lacuna in their case by seeking to recall the aforesaid witnesses.

Facts of the case:

The suit from which the present petition arises was a suit for recovery of Rs.11,90,000/-. The said suit was contested by the petitioners by filing a written statement, wherein it was stated that the alleged Will dated 20th June, 2006 of the petitioner no.1 and respondent’s mother was forged and fabricated and the alleged Will dated 26th March, 2007 of petitioner no.1 and respondent’s father was executed under force and coercion. The aforesaid Wills are also subject matter of an earlier partition suit filed on behalf of the petitioner no.1 which is also pending before the Trial Court. The issues were framed in the present suit on 15th July, 2010 and thereafter evidence was led on behalf of the respondent and the same was concluded in 2015. On 15th September, 2016 affidavit of evidence was filed on behalf of the petitioners. However, till date the cross-examination of the petitioner’s witnesses has not commenced.

Contention of the petitioner:

The following contention has been submitted by the petitioner:

  1. The petitioners contended that the undated statements given by the said witnesses in the partition suit are contrary to the evidence given by the said witnesses in the present suit.
  2. It was also urged that since these undated statements are not on oath, they cannot be exhibited and therefore, it is sought that the aforesaid witnesses may be recalled so that they can be confronted with the aforesaid undated statements.
  3. It was submitted that the lawyers engaged by the petitioners earlier, erroneously did not confront the said witnesses with the undated statements in the course of the cross-examination conducted by them and that the petitioners cannot be allowed to suffer on account of the fault of her lawyers.

Contention of the respondent:

The following submissions has been submitted by the respondent:

  1. It was argued that the aforesaid application has been filed belatedly inasmuch as the plaintiff’s evidence in the suit got concluded on 17th December, 2015.
  2. It was also submitted that that it is falsely averred that the cross-examination was conducted by the previous counsels in a faulty manner as the said previous counsels are still appearing for the petitioner no. 1 and her husband in other proceedings.
  3. It was also argued that the Petitioners did not disclose that an earlier application under Order 18 Rule 17 of CPC filed for recalling respondent’s witness, namely, Jai Bhagwan has been dismissed by the Trial Court vide order dated 20th July, 2016 and that no appeal has been filed against the said order.
  4. Lastly, it was argued that the present application has only been filed so as to fill-in the lacuna and to prolong the proceedings in her case and therefore, cannot be allowed.

Observation and judgement of the court:

The following observation has been made by the Hon'ble court:

  1. The Advocate in his wisdom conducts the cross-examination of the witnesses and a litigant cannot approach the court three years later and be heard to say that the cross-examination was not conducted properly.
  2. The impugned order has correctly noted that the litigant is the principal who is bound by all acts of his Advocate, who acts as his agent, so long as the aforesaid acts are conducted in the course of his professional duty.

Therefore, the court held that there is no infirmity in any of the impugned orders passed by the Trial Court that warrant interference of this Court in exercise of jurisdiction under Article 227 of the Constitution of India.

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