The Trial Court has the power to recall a witness to produce evidence not known to the party earlier or which could not be produced in spite of due diligence.

Prasenjit Mandal, J.

1. THIS application is at the instance of the defendant No.1 and is directed against the order dated August 16, 2010 passed by the learned Judge (Senior Division), Chinsurah, District - Hooghly in Title Suit No.274 of 1996.

2. THE short fact necessary for the purpose of disposal of this application is that the plaintiffs/opposite parties herein instituted a suit for declaration, partition and permanent injunction. In that suit, the defendant No.1 entered appearance and he is contesting the said suit by denying the material allegations placed in the plaint. Both the parties adduced evidence. Thereafter, the suit was fixed for hearing argument over the suit. When hearing of argument on behalf of both the parties was almost complete, at that time, the plaintiffs filed an application for marking a certain document as exhibit. That application was allowed by the learned Trial Judge by the impugned order. Being aggrieved, this application has been preferred. Now, the point for consideration is whether the impugned order should be sustained.

3. UPON hearing the learned Counsel for the parties and on going through the materials on record, I find that the suit filed by the plaintiffs/opposite parties was for declaration of title, partition and permanent injunction. Both the parties have adduced evidence and the evidence on behalf of the parties was complete when the suit was at the stage of almost close of argument, the plaintiffs filed an application for recall of the P.W.I. Such application for recall is appearing as annexure - C at page No.26. As to ground for recall, the plaintiffs have clearly stated that upon perusal of the written argument filed by the defendants, the plaintiffs verified the certain fact as to marriage of the mother of Bande Ali, namely, Mahitan Bibi because that was necessary for calculation of the share of the parties. On the basis of the written argument, the plaintiffs enquired about the second marriage of Mahitan Bibi and being satisfied that a Deed of 1926, that is, the registered Deed No.218 of 1926 would prove that Mahitan Bibi married twice. Such fact is to be brought on record to determine the shares of the parties with regard to the suit properties as described in the schedule of the plaint. The learned Trial Judge has clearly observed that such Deed of 1926 if brought on record, it may play a vital and important role in adjudicating the matter on merit, that is, to declare the right, title and interest of the parties in the suit property. The learned Trial Judge has also observed that the ground of mere delay cannot be overlooked to consider a piece of evidence. I have stated above that the suit is for declaration of title and for partition. So, both the parties are equally interested in the matter of declaration of title and partition. The opposite parties herein have clearly stated the grounds under what circumstances they have collected the materials, that is, a Deed of 1926 upon getting the copy of the written argument and they decided to prove that Mahitan Bibi married twice, once with Sk. Maqbub and after his demise to Sk. Ochimuddin. The opposite parties have wanted to mark the said document as exhibit No.12.

4. THEREFORE, I find that the questions to be put to the P.W.I on recall are very much limited to the Deed of 1926 and there is no scope of improvement of the evidence save and except the proof of the Deed of 1926 to prove certain relations. The ground of delay has been explained by the opposite parties.

Mr. Subrata Kr. Roy Karmarkar, learned Advocate for the opposite party has referred to the decision of Vadiraj Naggappa Vernekar (Dead) through LRS. vs. Sharadchandra Prabhakar Gogate, reported in 2009(4) SCC 410 and he has submitted that when a party prays for permission to re-examination on recall unless sufficient ground are shown for not producing the same earlier prayer for recall should not be entertained. If evidence of a witness on re- examination has a