(SHRI RAWATPURA SARKAR LOK KALYAN TRUST Vs SHRI SHRINAGARDHAM UDASEEN ASHRAM
NIJI NYAS SIRSAWAN CHITRAKOOT)
Shri Amalpushp Shroti, learned counsel for the petitioner.
Shri K.K. Mishra, learned counsel for respondent No. 1.
Shri Manoj Kushwaha, learned panel lawyer for the
The petitioner has filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 11.12.2015 passed by I Additional District Judge, Satna in Civil Suit No. 48A/2014 by which the trial Court has dismissed the application preferred by the petitioner under Order 18 Rule 17 of the Civil Procedure Code
The respondents had filed a civil suit for declaration as well as injunction. During the pendency of the trial, after evidence is closed, the petitioner has filed an application under Order 18 Rule 17 of the C.P.C. for recalling the defendant No. 2 (Mahant Avadit Das) for cross-examination. The trial Court by the impugned order has dismissed the application on the ground that the petitioner could not filed an application under Order 18 Rule 17 of the C.P.C. for re-examination of witnesses only the power is vested with the Court. Learned counsel for the petitioner submits that the order passed by the trial Court is illegal and contrary to law. He submits that as per provisions of Order 18 Rule 17 of the C.P.C, the power to recall the witnesses can be exercised by the Court either on its own motion or on application filed by any of the parties to the suit. He relied on the judgement passed by the Apex Court in the case of Vadiraj Naggappa Vernekar (Dead) Through Lrs. Vs. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410. In light of the aforesaid judgement, he argues that the order passed by the trial Court is erroneous.
On the other hand learned counsel appearing on behalf of the respondents supports the order passed by the trial Court.
I have heard learned counsel for the parties and perused the record as well as the order passed by the trial Court. The Apex Court in the case of Vadiraj Naggappa Vernekar (Dead) Through Lrs. (supra) in para 29 has held as under:-
â29. 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 hereinabove, 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.â
Thus, in light of the aforesaid judgement passed by the Apex Court, the impugned order dated 11.12.2015 passed by the trial Court is hereby set aside and the trial Court is directed to recall Mahant Avadit Das-defendant No. 2 for re cross- examination. The petitioner shall be at liberty to cross-examine the said witnesses on the date fixed by the trial Court and if in case, witnesses could not present before the trial Court for any reason, then the trial Court should consider the prayer of adjournment, if any, made by the petitioner.
Consequently, the interim order dated 14.01.2016 passed by this Court stands vacated.
Parties are directed to appear before the trial Court on
Certified copy as per rules.
(MISS VANDANA KASREKAR)