IMPORTANT POINT
The main legal point established in the judgment is that the powers under the Code of Civil Procedure, particularly the power of recall under Section 151, should be exercised sparingly and under exceptional circumstances. The judgment emphasized the need to prevent misuse of the provisions of law and to ensure that the exercise of such powers serves the cause of justice.

JUDGMENT :

Shampa Sarkar, J.

1. The revisional application arises out of an order dated July 1, 2023 passed by the learned Additional District Judge, 14th Court at Alipore in original suit No.6 of 2008. An application under Section 151 of the Code of Civil Procedure, filed by the opposite party No.1, praying for his recall and re-examination was allowed. The opposite party No.1 is the propounder of his father’s Will and plaintiff in the suit. He was examined as PW2 in the suit. His evidence stretched over from August 2010 to October 2011. His evidence was closed and he was discharged.

2. The petitioner is a contesting defendant in O.S. No. 11 of 1995, now renumbered as O.S. No.6 of 2008. The suit is for grant of probate of the last Will and Testament of late Sailesh Paul Majumdar, executed on October 7, 1991. The proceeding became contentious. The petitioner is the heir and legal representative of the original defendant No.2 late Sima Bose, having been duly substituted after her demise. The petitioner’s father late Sukalyan Bose, also expired.

3. The learned court allowed the application filed by the opposite party No.1 on the ground that a similar application was allowed by an order dated April 13, 2018 which permitted re-examination of Biswanath Santra, PW 3 (since deceased). The opposite party No.1 wanted to prove a document by tendering the same to PW3, which was a handwritten instruction given to PW3 by the testator with regard to the manner in which the testator wanted to settle the property. As Biswanath Santra, PW 3 passed away, the learned court was of the view that the opposite party No.1 should be recalled to prove the document in place of the learned Advocate who had been handed over the document by the testator. The court held that no prejudice would be caused to the defendants in the suit. Thus, there was no impediment on the part of the learned court to allow such an application.

4. Learned advocate for the petitioner has challenged the said order on various grounds. According to Mr. Poddar, Order 18 Rule 17 of the Code of Civil Procedure permitted recalling of a witness to clarify, elucidate or elaborate the evidence already on record. Re-examination of a witness should be either clarificatory or explanatory and the said provision should not be used casually, to fill up any lacunae in the evidence already on record.

5. The learned court failed to consider such provision of law. The learned Court, mechanically allowed the application. The opposite party No.1 had ample opportunity to prove the document when the evidence was going. The document was not disclosed at the first instance. One of the attesting witnesses, while proving the Will and the learned Advocate who had drafted the Will, mentioned the same in their evidence. The document was produced by way of a firisti later on after their evidence had commenced. Even assuming that Section 151 of the Code of Civil Procedure permitted the court to exercise inherent power to recall a witness, such power should be exercised sparingly and only under exceptional circumstances, for the ends of justice.

6. After eight years from the commencement of the evidence, the document was sought to be tendered. The learned advocate further contended that the deletion of Order 18 Rule 17A of the Code of Civil Procedure indicated that the legislative intent was to do away with the provision of recalling a witness at any stage of the suit in order to prevent abuse of the process of court by introduction of fresh evidence or by deposing further after the evidence was closed. Section 151 of the Code could not be used to introduce further evidence which was already available to the parties. The legislative intent should be strictly construed. The only exception to introduction of new documents in evidence was when a party could not produce the document despite due diligence. This was not a case of such nature. Rather, the opposite party No.1 had admitted that he had no knowledge either of th