The main legal point established in the judgment is that the power to recall and examine a witness under Order XVIII Rule 17 CPC should be exercised judiciously and only in exceptional circumstances to prevent a failure of justice.

Sanjay Karol, J.

Defendant’s application filed under Order XVIII Rule 17 CPC, praying for re-examining the plaintiffs’ witness, as defendant’s suggestion of being in possession of the suit property, so put during the course of cross examination, was inadvertently left out from being recorded in the testimony, stands rejected by the trial Court vide impugned order dated 23.6.2016, passed in Civil Suit No. 35-1 of 2015/09, titled as Satish Kumar Sharma & others vs. Hari Krishan, (Annexure P-7).

2. Plaintiffs filed a suit seeking declaration qua the status and right & title of the defendant in the suit property. Defendant refuted the allegations, setting up his title.

3. On 21.11.2009, trial Court framed as many as fifteen issues. Record reveals that after a period of three years, on 17.10.2012, plaintiffs examined four witnesses. Thereafter, plaintiff No. 1 Satish Kumar Sharma was examined and his statement runs into 20 pages. It was recorded on 13.7.2015. Further two more witnesses were examined on 13.8.2015, on which date plaintiffs closed their evidence, where after matter was adjourned for 10.9.2015 for examination of defendant’s witnesses.

4. Instead of leading evidence on 10.9.2015, defendant moved the application in issue, seeking recall of witness Satish Kumar Sharma, inter alia, for the following reason:

“4. That in order to prove the case, the non-applicant No. 1 namely Satish Kumar stepped into the witness box and appeared as PW-1 on dated 13-07-2015. On 13-7-2015 this witness was cross examined on behalf of the applicant/defendant. Specific suggestions were given to this witness i.e. PW-1 (plaintiff No. 1 Satish Kumar) on behalf of applicant/defendant that as per the family arrangement of partition of the suit land, in between Sh. Geeta Ram predecessor in interest of non-applicant and Sh. Hari Krishan, applicant/defendant is in possession of that part of suit land which is also recorded so and that the possession of the applicant over that part of suit land is from the time of Sh. Geeta Ram. These suggestions however denied by the non-applicant No. 1/PW-1.”

5. Plaintiffs denied the same in the following terms:

“4. That the contents of para 4 are denied as being wrong and frivolous. It is submitted that the reason as assigned by the applicant is nothing but just an afterthought to fill in the lacunas as submitted supra.”

6. Having heard learned counsel for the parties as also perused the record, this Court is unable to persuade itself to interfere with the impugned order, so assailed in a petition filed under Article 227 of the Constitution of India. It cannot be said that the court below failed to exercise its jurisdiction or in the exercise thereof, it committed any illegality or material irregularity. Also the order cannot be said to be perverse. Though specifically not pleaded, but defendant finds fault with the trial Court in not correctly recording the statement of the witness. Well aspersions, though oblique, are not well founded and are totally unsustainable.

7. Record reveals that the case is hotly contested. Almost on every date of hearing, learned counsel for both the parties have been appearing.

8. Statement of witness Satish Kumar Sharma (PW-5) sought to be recalled was recorded on 13.7.2015. It is hand written and runs into twenty pages. In fact, cross-examination part of the testimony itself runs into sixteen pages. The handwriting is clear, legible and readable. The witness, after reading the statement has signed the same. It is not the case of the defendant that statement of the witness was recorded in a casual manner or not under the direct supervision of the Presiding Officer or in the absence of the learned counsel. As such, this Court is not inclined to accept the contention that suggestion of the defendant of being in possession of the suit land, by virtue of a family settlement, though put to the witness, was inadvertently left out from being recorded. Also, application is not accompanied by aff