The duty of the court is to take necessary steps to get to the truth of the matter and decide cases based on relevant material, while cautioning against routine use of the power to recall witnesses and emphasizing the importance of avoiding protracted tactics.

JUDGMENT :

P.C.:

1. By this Writ Petition, the petitioner, who is the original defendant has challenged order dated 13.09.2019, passed by the Court of Civil Judge Junior Division, Panaji (hereinafter referred to as the Trial Court), whereby an Application (Exhibit D-77), filed on behalf of the petitioner for recalling witness of the respondent i.e. PW-1, has been dismissed.

2. In a suit filed by the respondent for eviction of the petitioner, he has filed a counterclaim.

3. The Trial Court was recording evidence of PW-1 i.e. the first witness of the respondent and the said witness was being cross examined on behalf of the petitioner. On 17.04.2019, at the end of recording of cross examination of PW-1, it was recorded by the Trial Court as follows:

“For want of time”

4. The Roznama for the aforesaid date i.e. 17.04.2019 recorded that cross examination of PW-1 was recorded and completed. On the next date of hearing i.e. on 07.06.2019, it was further recorded that the Counsel appearing for the defendant i.e. the petitioner herein, submitted that he had completed the cross examination of PW-1.

5. On 31.07.2019, an Application was moved on behalf of the petitioner for recalling PW-1. It was stated in this Application that although, the cross examination of PW-1 was completed, due to inadvertence on the part of the Advocate representing the petitioner, in haste, he did not question PW-1 on certain aspects of the matter and inadvertently, without going through the record he made a statement that cross examination of PW-1 was complete. This Application was opposed on behalf of the respondent.

6. By the impugned order, the Application was dismissed and the present Writ Petition was filed challenging the order, in which, notice was issued and the respondent appeared through Counsel.

7. Mr. Ramaiya, learned Counsel appearing for the petitioner submitted that a perusal of the cross examination of PW-1 on 17.04.2019, would show that the aforesaid endorsement i.e. “for want of time”, at the end clearly indicated that further cross examination was yet to be undertaken and it was deferred for want of time. It was submitted that though it was stated in Roznama dated 17.04.2019 that cross examination was completed, it demonstrates an inadvertent mistake on the part of the Advocate for the petitioner, due to which cross examination of PW-1 could not be completed. It was submitted that the litigant should not be made to suffer due to the mistake of the Counsel. It was further submitted that to get to the truth of the matter, the Court is expected to take such steps as would be necessary and, in the facts and circumstances of the present case, the Application filed on behalf of the petitioner should have been allowed. Reliance is placed on the judgment of the Hon'ble Supreme Court in the case of K.K. Velusamy Vs. N. Palanisamy, (2011) 11 SCC 275.

8. On the other hand, Mr. Bhobe, learned Counsel appearing for the respondent submitted that the facts of the present case would not justify application of law laid down by the Hon'ble Supreme Court in the case of K.K. Velusamy Vs. N. Palanisamy (supra). It was submitted that the Advocate for the petitioner, not only in one place, but, in two places in the Roznama emphatically stated that cross examination of PW-1 was completed. It was submitted that merely because as an afterthought, the Advocate for the petitioner was of the opinion that certain questions were not put to PW-1, it cannot be a ground for allowing further cross examination by recalling the witness. Attention of this Court was invited to the cross examination of PW-1 recorded on 17.04.2019, wherein suggestions were put to PW-1, thereby indicating that cross examination of PW-1 was indeed complete.

9. In this context, the learned Counsel for the petitioner submitted that there is a counterclaim filed before the Trial Court and that certain suggestions in that regard were not put to the witness and therefore, it could not be said that the process of cro