Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(HP) 381

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SANDEEP SHARMA, J.
Sushma Aggarwal – Appellant
Versus
Ramesh Chand Aggarwal & ors. – Respondents
CMPMO No.44 of 2023
Decided on : 06-07-2023

Advocate Appeared:
For the Appellant :Mr. Shubham Sood, Advocate.
For the Respondents:Mr. Ashok Sood, Sr. Advocate with Mr. Khem Raj and Ms. Pooja Verma, Advocates, Mr. Viman Kumar Soni, Advocate

Point of Law: Order 18 Rule 17 CPC enables Court to recall any witness to clarify any doubts which it may have with regard to evidence led by parties.

Headnote:
Code of Civil Procedure, 1908 - Order 18 Rule 17, Order 7 Rule 14, Order 17 Rule 1 and 2, Order 41 Rule 27, Section 151 - Constitution of India, 1950 - Article 227 - Indian Evidence Act, 1872 - Section 65 - Application for recalling witness - Cross-examination - Aggrieved with order whereby an application for recalling witness for cross-examination, came to be dismissed, plaintiff approached court praying therein to set-aside impugned order – Plaintiff was afforded due opportunity to cross-examine DW-9 and he has been already cross-examined qua all aspects of matter. (Para 13)
Finding of the Court :
Cross-examination already conducted by plaintiff nowhere suggest that further cross-examination, if any, is required - Most importantly in judgment, it has been clearly held that recalling of witness for further elaboration on left out points is wholly impermissible in law - Plaintiff was afforded due opportunity to cross-examine DW-9 and he has been already cross-examined qua all aspects of matter, no illegality can be said to have been committed by learned Court below while passing order impugned in instant proceedings - Courts finds no illegality and infirmity in impugned order passed by learned Court below and as such same is upheld.
Result: Petition dismissed.

JUDGMENT :

Sandeep Sharma, J.

Being aggrieved and dissatisfied with order dated 11.1.2023, passed by learned Sr. Civil Judge, Court No.1, Shimla, whereby an application under Order 18 Rule 17 read with section 151 CPC, having been filed by the petitioner/plaintiff (hereinafter referred to as ‘plaintiff’) for recalling the witness i.e. DW-9, namely, Ramesh Chand, for cross-examination, came to be dismissed, plaintiff has approached this court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to set-aside the aforesaid impugned order.

2. Precisely, the facts of the case as emerge from the record are that the plaintiff filed a suit for declaration to the effect that the properties comprised in Khasra No.259/2/A measuring 504 square yards and Khasra No.259/2/B, measuring 661 square yards, situated at Bothwell Lodge Estate, Shimla-Sanjauli Road, Shimla, were purchased by Sh. Mam Raj, the real owner with the funds of joint Hindu Family Benami, in the name of his wife Smt. Darshani Devi and mutation No.1261 regarding the sale deed No.179 dated 10.9.1970, mutation No.1262, regarding sale deed No.180 dated 10.9.1970 and mutation No.1330 of inheritance of estate is illegal, null and void having been obtained by defendants No.1 to 4 by practicing fraud and misrepresentation. Beside above, plaintiff also sought for decree of declaration to the effect that she is in exclusive owner of the suit property. The aforesaid claim put forth by the plaintiff came to be resisted and contested on behalf of the defendants by way of filing written statement.

3. After framing of issues, plaintiff completed his evidence in affirmative, but before closure of evidence being led by the defendants filed an application, under Order 18 Rule 17 read with Section 151 CPC, praying therein to recall DW-9, namely, Ramesh Chand, for cross-examination on the ground that his cross-examination was deferred on 14.6.2019, but thereafter, no opportunity was granted for further cross-examination of the aforesaid witness. The aforesaid prayer made on behalf of the plaintiff came to be opposed on behalf of the defendants, who in reply to the application stated that further opportunity for cross-examination of DW-9 was granted to the plaintiff after passing of order dated 14.6.2019 and the plaintiff has already cross-examined DW-9, qua all aspects of the matter. Beside above, defendants also stated in the reply that attempt is being made by the plaintiff to fill up the lacunae by recalling the witness, who has already been cross-examined at length. On the basis of record and pleadings adduced on record in the application in question, the learned Court below dismissed the application vide order dated 11.1.2023. In the aforesaid background, plaintiff has approached this Court in the instant proceedings.

4. After having heard learned counsel for the parties and perused material available on record, this Court finds that at first instance statement of DW-9, Ramesh Chand, was recorded on 14.6.2019, but his cross-examination was deferred on account of paucity of time. Though, the matter was adjourned to 4th July, 2019 for cross-examination of DW-9, but on that day, plaintiff filed an application under Order 17 Rule 1 read with section 151 CPC, for adjournment, as such, matter was adjourned to 13th July, 2019 for listing the same before the National Lok Adalat, on which date, afore application filed by the plaintiff was allowed and the matter was adjourned to 5.8.2019. The zimini orders placed on record clealy reveal that after 5.8.2019, matter repeatedly came to be adjourned on the request of the learned counsel representing the plaintiff. On 27.9.2019, the Court below permitted the plaintiff to move an application for leading secondary evidence and listed the matter on 15.10.2019. On 7.10.2020, an application under Section 65 of the Indian Evidence Act, having been filed by the plaintiff was considered and the matter was posted for orders