The main legal point established in the judgment is the restricted power of the court to recall a witness under Order 18 Rule 17 of the CPC and the need for bona fide applications, cautioning against using the provision as a protracting tactic and outlining the consequences of allowing frivolous applications.

JUDGMENT :

Heard, Mr. S.P. Das, learned counsel for the petitioner. Also heard Mr. T.R. Gogoi, learned counsel for the respondent No. 1 and Mr. M. Boro, learned counsel for the respondent No. 2.

2. The petitioner Kangkan Kishore Borah instituted T.S. No. 497/2013 in the Court of Civil Judge No. 1, Kamrup at Guwahati praying for a declaration that the letter dated 16.08.2013 issued by the defendant no. 4 therein namely the Secretary Jyoti Chitraban, Film Studio Society to be bad in law, in-operative and not binding upon the plaintiff and further for a declaration that the defendants are jointly and severally liable to pay a sum of Rs.29,02,167/-(Twenty Nine Lakhs Two Thousand One Hundred Sixty Seven) with pendentillite and future interest and certain other reliefs as indicated in the prayer of the plaint.

3. In the proceeding before the learned Civil Judge No. 1, Kamrup, the matter was placed before the learned Advocate Commissioner for the purpose of adducing oral evidence of the witnesses of the parties. The cross examination of DW.2 namely Ranjan Hazarika was fixed before the learned Advocate Commissioner on 21.01.2023. But on the said date, the plaintiff made a request to the learned Advocate Commissioner that the cross examination be deferred as the learned counsel Mr. S.P. Das who was to lead the cross examination on behalf of the plaintiff was inconvenienced inasmuch as he was performing the Annual Shradha of his mother. The learned Advocate Commissioner appears to have refused the request for adjournment and compelled the learned counsel who appeared before the learned Advocate Commissioner to proceed with the cross examination.

4. It is stated that the learned Advocate Commissioner acted in that manner at the behest of the defendants. Accordingly, the learned counsel who made a request for the adjournment was required to proceed with the cross examination and the cross examination that was done was not to the complete satisfaction of the plaintiff but however, the learned Advocate Commissioner closed the further cross examination of DW.2.

5. In the circumstance, the plaintiff instituted petition No. 1378/2023 under Section 151 read with Order 18 Rule 17 of the CPC for recalling the DW.2 for further cross examination. By the order dated 03.08.2023 of the learned Civil Judge No. 1, Kamrup, the petition no. 1378/2023 requesting for recalling the DW.2 and further cross examination stood rejected on the ground that the DW.2 was cross examined and discharged by the learned Advocate Commissioner and if any further question was left out on the side of the plaintiff, the plaintiff could have reserved the further cross examination of DW.2 but instead of doing that the cross examination of DW.2 was closed and consequent thereof he was discharged.

6. On one hand, the learned Civil Judge No. 1 had recorded that on 21.01.2023 there was a request on the part of the plaintiff to defer the cross examination inasmuchas the learned counsel for the plaintiff who was to lead the cross examination was inconvenienced as he was to perform the Annual Shradha of his mother and the plaintiff was compelled to proceed with the cross examination through the learned counsel who was unprepared for the purpose and on the other hand, arrives at its conclusion that the plaintiff could have reserved the further cross examination of DW.2 but instead of doing that the cross examination of DW.2 was closed.

7. No material is available to show that the plaintiff on his own volition had required the cross examination to be closed, in the background of the circumstance that there was a prior request for deferring the cross examination inasmuch as the learned counsel leading the cross examination was at inconvenience on the given day.

8. The conflicting materials as recorded by the learned Civil Judge No. 1, Kamrup does not reflect that the cross examination of the DW.2 was closed by following the due procedure of law. In either view of the matter, when there is a reque