Law Web: Whether party can recall witness for cross examination as of right?

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.

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.

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.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16/11/2007

CORAM :

MR. JUSTICE A. KULASEKARAN

C.R.P. (PD) Nos.3563 & 3564 of 2007

and

M.P. No.1 of 2007

V. Shanmugam V S. Umamaheswaran

Citation: AIR 2008 (NOC) 646 Mad

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.

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: