The main legal point established in the judgment is that an application under Order 18 Rule 17 of CPC cannot be used to fill up the omission in the evidence already let by a witness, and there is no provision in law to compel the plaintiff to cross-examine.

JUDGMENT

Manmeet Pritam Singh Arora, J. (Oral):

CM APPL. 33660/2023 (for exemption)

Exemption is allowed, subject to all just exceptions.

Accordingly, the present application stands disposed of.

CM(M) 1036/2023 & CM APPL. 33661/2023

1. This petition filed under Article 227 of the Constitution of India impugns the order dated 17.04.2023 passed by the ADJ-02, North East District, Karkardooma Courts, Delhi (`Trial Court') in civil suit no. 476364/2015, titled as `Narender Kumar vs. Sunil Kumar Tandon & Ors.', whereby the Trial Court has dismissed the Petitioner's application filed under Order 18 Rule 17 of Code of Civil Procedure, 1908 (`CPC') for recalling of DW-1, i.e., Petitioner himself, for further cross examination.

1.1 The Petitioner is the original defendant and the Respondent is the original plaintiff in the civil suit.

2. Brief facts leading to filing of present petition are as under:

2.1 The civil suit has been filed by the plaintiff seeking specific performance of Agreement to Sell (`ATS') dated 13.10.2007, recovery of damages and injunction.

2.2 The Petitioner herein stepped into the witness box as DW-1 and tendered his affidavit by way of evidence on 19.09.2019. He was cross- examined on the same date (i.e., 19.09.2019) by the counsel for the Respondent and subsequently discharged.

2.3 During the course of cross-examination, the Petitioner herein deposed with respect to the ATS (Exhibit PW-1/3) and answered the questions of the counsel for the Respondent. However, on 19.09.2019 while signing his statement, the counsel for the Petitioner raised an objection to the effect that a statement `volunteered' by DW-1 during his cross-examination has not been recorded by the Trial Court.

2.4 The said submission of the Petitioner was recorded by the Trial Court in its order dated 19.09.2019, however, the Trial Court did not find any merit in the same and therefore did not permit any addition to the statement recorded during the cross-examination.

2.5 The Petitioner thereafter filed an application on or around 07.09.2021 under Order 18 Rule 17 CPC for recalling DW-1 to the witness stand to offer himself for further and proper cross examination by Respondent herein. The said application was opposed by the Respondent, who stated that he does not wish to further cross examine DW-1.

2.6 The said application has been dismissed by the Trial Court vide impugned order dated 17.04.2023, wherein the Trial Court held as under:

"5. In the present application filed by DW 1, there is not even an iota of suggestion regarding what important aspects were needed to be inculcated by DW1 during his testimony, which were allegedly omitted for reasons detailed in the application. It also needs to be stressed that it is also not understandable/explained that admittedly, plaintiff has no objection regarding the cross examination of DW1 but DW1 has himself objected his cross examination and needs the flow of objections/suggestions/voluntary statement to be made according to him in the course of his cross examination. Time and again, it is stressed that the cross examination of witness is the prerogative of the party who conducts his/her cross examination. Therefore, in view of the above discussion, there is no merit in the present application of DW1 and the same is dismissed accordingly. Though, at the same time, defendant number 1 has submitted that he wants to lead further defendants' evidence. In the interest of justice, one opportunity is being granted to defendant number 1 for leading defendants' evidence. If witness needs to be summoned he must be summoned before the next date of hearing or in case evidence by way of affidavit is to be filed let advance copy of same be supplied to the other party so that the testimony be recorded positively on next date of hearing. Application is disposed of accordingly."

(Emphasis Supplied)

3. The learned counsel for the Petitioner has placed reliance upon the averments made in the written statement and the affidavi