Point of Law: The power to recall any witness under Order 18 Rule 17 can be exercised by court either on its own motion or on an application filed by any of parties to suit requesting court to exercise the said power.

JUDGMENT :

By way of this Revision Petition, the petitioner/tenant has challenged order passed by the learned Rent Controller, Shimla, H.P., in the eviction proceedings initiated against him by contesting respondents/landlord, in terms whereof an application filed under Order 18, Rule 17 read with Section 151 of the Civil Procedure Code, praying for recalling petitioner/PW3 Rajinder Kumar Sood for the purpose of further cross-examination has been rejected.

2. Brief facts necessary for the adjudication of the present petition are as under:

An application under Order 18, Rule 17 read with Section 151 of the Civil Procedure Code was filed by the petitioner/ tenant (hereinafter referred to as the ‘tenant’), on the ground that an application under Order 6, Rule 17 of the Civil Procedure Code for amendment of reply filed by him was allowed by the learned Rent Controller on 27.11.2020, therefore, it was necessary to further cross-examine PW3 as statement of this witness stood recorded on 16.05.2019, i.e. before the amendment was allowed.

3. The application was resisted by the non-applicants/ landlords, on the ground that there was no necessity for cross-examination of plaintiff/PW3 on the grounds mentioned in the application as the genesis of filing the application for amendment of the reply itself was the cross-examination of PW3. The application was rejected by the learned Rent Controller, which has resulted in filing of this petition.

4. Learned Senior Counsel appearing for the petitioner has argued that in terms of application filed under Order 6, Rule 17 of the Civil Procedure Code, which was allowed by the learned Rent Controller, the tenant was allowed to amend its reply to the Eviction Petition. By pointing out to the application dated 28.08.2017, filed under Order 6, Rule 17 of the Civil Procedure code, learned Senior Counsel submitted that preliminary objection No.10 was allowed to be added by way of amendment to the reply which was to the effect that the Eviction Petition was liable to be dismissed in view of the fact that landlord who had obtained possession of another building or rented land under the provisions of clause (a) and clause (b) of Section 14 of the Himachal Pradesh Urban Rent Control Act was not entitled to apply again under the same clause for possession of another building of same class or rented land and in the present case, petitioner No.2/landlord No.2 had obtained possession of western side of shop No.93 on the top floor of Mall Road, Shimla, which was in possession of one Gopal Dass Verma. Besides this, learned Senior Counsel submitted that the amendments which were further allowed to be incorporated in the reply were to the effect that the petition was also liable to be dismissed on the ground that landlord No.2 had obtained possession of one shop in ground floor of building No.106, Lower Bazar Shimla, by filing an Eviction Petition, which fact was admitted by him during the course of his cross-examination which was thereafter let out to Oriental Bank of Commerce. Learned Senior Counsel stated that this act also disentitled the landlords to file and maintain the present petition. Learned Senior Counsel argued that once amendments were allowed to be incorporated in the reply, further cross-examination of the landlord, PW3 Rajinder Kumar Sood was necessary on these aspects of the matter and by dismissal of the application in terms of the impugned order by learned Rent Controller, this extremely important right of the tenants has been wrongly denied to them. Learned Senior Counsel argued that there was concealment of fact in the Rent Petition with regard to the premises in the possession of Gopal Dass and as amendment was permitted to be incorporated in reply in this regard, therefore also, further cross-examination of PW3 on this issue was necessary, which important aspect of the matter has been ignored by the learned Court below. Accordingly, learned Senior Counsel argued that present petition be allowed a