(1) HEARD the learned Advocates appearing on behalf of the parties.

(2) THIS is an application under Article 227 of the Constitution of India directed against an order dated 2nd February, 2007 passed by the learned civil Judge (Junior Division), 1st Court, Chandannagar in Title Suit No. 95 of 2004.

(3) BY the said impugned order, the plaintiffs petition under Sections 137 and 138 of the Evidence Act was rejected by the learned Court below inter alia with the following observations :

"on perusal of the petition, I find that no schedule has been mentioned regarding the questions to be put forth to the witness. Even from the contents of the petition, it cannot be concluded as to what questions are to be put to the witness on recall. The contents of the petition are vague and this petition can not be allowed because of its ambiguity. Hence, it is ordered that the petition under Sections 137 and 138 Evidence Act be and the same is rejected on contest. "

(4) BEFORE proceeding to decide whether the impugned order is sustainable in law or not, in my view the two relevant sections of the Indian evidence Act, 1872 needs to be looked into. For convenience, Sections 137 and 138 of the Indian Evidence Act are reproduced herein below:-

"137. Examination-in-chief.-The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.-The examination of a witness by the adverse party shall be called his cross-examination. Re-examination.-The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

138. Order of examinations.-Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) reexamined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination.-The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. "

(5) FROM a plain reading of Section 137 read with Section 138 of the Indian Evidence Act, 1872, it appears to me that statute vests an absolute right upon a party to reexamine its witness/witnesses, if the party calling him or her so desires. In fact, the word, shall, wherever it appears in Section 137 and Section 138, in the context of re-examination, should be read as a mandatory expression in the relevant parts of the statute quoted above. The permission of Court is required only for the purpose of introducing a new matter in such re-examination.

(6) THE learned Advocate appearing on behalf of the petitioner has referred to several judgments with regard to the proposition of law that the right to re-examine is an absolute right, so far as it is directed to explain matters referred to in the cross-examination.

(7) IN the instant case however, the issue for consideration is whether the learned Court below could have refused permission to the plaintiff to introduce evidence in reexamination, rejecting the prayer for recalling the plaintiff as a witness for the said purpose.

(8) ON a bare perusal of the relevant extract of the order impugned, it appears that the learned Court below did not at all take into consideration the mandatory expression, shall in the context of re-examination, as observed hereinabove.

(9) THE learned Court below has proceeded wholly on the basis that no schedule has been mentioned regarding the questions to be put forth to the witness. The learned Court below after going through the contents of the petition has further observed that from the petition it could not be concluded as to what questions would be put to the witness on recall. Taking this aspect into consideration