Whether its allowed to recall witness for cross examination

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16/11/2007

CORAM : THE HONOURABLE MR. JUSTICE A. KULASEKARAN

C.R.P. (PD) Nos.3563 & 3564 of 2007 and M.P. No.1 of 2007

V. Shanmugam .. Petitioner in both the CRPs
Versus
S. Umamaheswaran .. Respondent in both the CRPs

Revisions under Article 227 of The Constitution of
India against the common Order dated 28.09.2007 made in I.A.
No. 770 and 771 of 2007 in O.S. No. 27 of 2004 on the file
of Principal District Judge, Erode

For Petitioner : Mr. A.K. Kumarasamy

ORDER
This revision petition is listed today for admission and I heard the learned counsel for the petitioner.

2. The first defendant in O.S. No. 27 of 2004 on the file of Principal District Judge, Erode is the revision petitioner herein. The respondent herein has filed the said suit for setting aside the sale deed dated 14.10.1998, executed in favour of the petitioner herein pertaining to A- Schedule property and the sale deed dated 09.10.1998 executed in favour of the 4th defendant pertaining to item 1 of B Schedule property and the sale deed dated 13.10.1998 in favour of the 4th defendant in respect of item No.2 of the B Schedule Property and for damages.

3. On earlier occasion, this Court, while disposing of the Civil Miscellaneous Appeal, directed the trial court to dispose of the suit within a period of six months. The respondent herein had examined six witnesses on his side including PW6, who is the Bank Official. The petitioner herein has filed I.A. Nos. 770 and 771 of 2007 for re- opening PW6’s evidence and recall PW6 respectively for cross- examination by the petitioner and the said IAs were dismissed by the order dated 28.09.2006, which is challenged in these civil revision petitions.

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4. The learned counsel for the petitioner Mr. A.K. Kumarasamy has submitted that the petitioner all along co- operating with the Court, keeping in mind that the suit was directed to be disposed of within a period of six months, however, while cross-examining PW6, the petitioner failed to elicit certain facts, which are essential for disposal of the said suit and hence, the said IAs were filed and that the court below erroneously dismissed the same on the ground that already this Court fixed six months period for disposal of the said suit and sufficient opportunity was given to the petitioner for cross-examination of PW6 and hence, the prayer as sought for cannot be accepted and prayed for setting aside the same.

5. Order 18 Rule 17 of CPC contemplates as under:

“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 question to him as the Court thinks fit.”
6. The power of the Court under this Rule is discritionary, but it ought to be exercised with greatest care only in exceptional circumstances. In this case, the petitioner has mentioned in the affidavit filed in support of the said I.A.s that he failed to put certain important questions (tHf;fpw;F njitahd rpy Kf;fpakhd nfs;tpfs; FWf;F tprhuidapd;nghJ tpLgl;Ltpl;ld) and hence to re-open the evidence of PW6 and recalling him are necessarily required. The court below found that the petitioner was given sufficient opportunity and hence, it is unwarranted to re- open the evidence and recall the witness, as required by the petitioner herein.

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7. When a witness was cross-examined at length and no request has been made to defer further cross- examination, later a request is made for further cross- examination of a witness, refusing the same is justified. Moreover, the power of the Court under Order 18 Rule 17 CPC to recall and examine a witness at any stage of the suit is to be exercised in exceptional circumstances. Where no exceptional circumstances have been made out and unless the reason given by the trial judge could be described as moon shine, flimsy or irrational stemmed from any oblique motive or purpose, the rejection of the application cannot be called as non-judicial approach and the High Court cannot interfere. In this context, we look into Section 165 of the Evidence Act, which is as follows:

“165. Judge’s power to put questions or order production.- The Judge may, in order to discover or obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question;
8. In other angle, when we look into the provisions of Order 18 Rule 17 CPC read along with the provisions of Section 165 of Indian Evidence Act, it is clear that the power to recall and re-examine a witness is exclusively with that of the Court trying the suit. The trial court, in this case felt that re-open/recalling of PW6 is unwarranted. Incidentally, the time of six months granted by this Court for the disposal of the said suit was also over.

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9. In view of the above, the reasons assigned by the trial court for dismissing the applications for reopening the evidence and to recall PW6 are perfectly valid. Interference of this is not warranted. Hence, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous Petition is closed. rsh To The Principal District Judge District Court Erode.

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