Point of Law: Recalling of witness - An engagement for a new counsel and his/her advice that the witness ought to have been cross-examined in a particular manner, in the opinion of this Court cannot be a justified reason for recalling of a witness.

JUDGMENT :

1. Heard Mr. S.C. Keyal, the learned counsel appearing on behalf of the Petitioner and Mr. R.S. Mishra, the learned counsel appearing on behalf of the Respondents.

2. This is an application filed under Article 227 of the Constitution of India challenging the order dated 20.01.2021 by which three applications filed by the Petitioner were rejected.

3. The Petition No.37/2020 was an application under Order VI Rule 17 of the Code seeking amendment to insert three paragraphs to the written statement i.e. Paragraph No.3(a), 6(a) and 7(a). A perusal of the said paragraphs would show that the Petitioner herein as Defendant wanted to insert the point of non-joinder of all the legal heirs of Late Girish Deo Ojha and all the legal heirs of Late Kashinath Ojha on the ground that they were necessary parties for determining the real question of controversy. In terms with Paragraph 6(a), a preliminary objection was taken to the effect that the suit was barred under Order II Rule 2 of the CPC on the ground that the plaintiffs’ predecessor in interest Late Mangal Singh Lal Chetry had already relinquished his claim over the suit land based on a cause of action for the suit for declaration in Title Suit No.75/2006. By Paragraph 7(a), the defendant wanted to insert a sentence to the effect that the description of the suit land is wrong and there is no passage to the suit land. The said application was filed admittedly after the trial has commenced inasmuch as the plaintiff witness No.1 was cross-examined and the plaintiff witness Nos. 2 and 3 whose evidence were accepted with cross-examination taking into account that the defendants did not cross-examine the said plaintiff witness Nos. 2 and 3, it was deemed to have been declined.

4. The second petition is Petition No.38/2020 whereby the Petitioner/the Defendant No.1 sought for recalling of the plaintiff witness No.1 as well as also for recalling of the orders dated 09.10.2018 and 12.12.2018 by which the cross-examination of PWs 2 and 3 was deemed to have been declined.

5. The third petition i.e. Petition No.39/2020 was an application filed for calling for the case records being Case No.213/1994 from the Court of the Executive Magistrate between Sri. Mangal Singh Lal Chetry and Sri. Girish Deo Ojha which was disposed of on 01.07.2002 on the ground that the said records are material for the adjudication of the said dispute.

6. The Trial Court vide the impugned order rejected the Petition No.37/2020 on the ground that permitting the amendment would amount to filling up a lacuna of the case that too when no due diligence have been shown by the defendant as to why the said amendment could not have been sought for prior to the commencement of the trial.

7. The Petition No.38/2020 was partly allowed by the Trial Court thereby allowing the defendants to cross-examine the plaintiff witness No.2 and plaintiff witness No.3. However, as regards the recalling of the plaintiff witness No.1, the same was not allowed taking into account that the plaintiff witness No.1 was duly cross-examined and discharged. The learned Court below observed that after considering the materials on record including the evidence-in-chief and cross-examination of PW-1, there appears no relevancy and necessity to recall the PW-1 for the proper adjudication of the suit. It was observed that just because a new counsel has been engaged in a case, that cannot be a justified ground to recall the witness. Accordingly, on the basis of the said observations, the said petition No.38/2020 was partly allowed.

8. The Petition No.39/2020 was rejected by the Trial Court holding inter alia that the said petition was not supported by an affidavit which is a mandatory requirement as per the provisions of order XIII Rule 10 of the CPC. The Court also observed that there was no mention as to how the records are material to the instant case. It was also observed by the Trial Court after going through the copy of the order passed in Case No.213/1994 t