A party cannot reopen evidence on grounds of prior counsel's negligence; integrity of trial procedures must be upheld.

JUDGMENT :

Ajay Mohan Goel, J. 

By way of this petition filed under Article 227 of the Constitution of India, the petitioner has assailed the order passed by the learned Trial Court dated 22.06.2022, in terms whereof, an application filed by the petitioner under Order 18, Rule 17, read with Section 151 of the Civil Procedure Code, to recall and re-examine witness Chuni Lal, has been dismissed.

2. Learned Counsel for the petitioner has submitted that the Counsel engaged by the party unfortunately was suffering from ill health and on account thereof, on the date concerned, the witness was examined by a junior Counsel and because said junior Counsel was not properly briefed, therefore, he could not put appropriate questions to the witness and further as the witness had turned hostile, therefore, there was a need to conduct his cross examination but this was also not done by the Counsel who had in fact appeared vice to the original Counsel. He thus submitted that as on account of the negligence on the part of the Counsel, the petitioner was being denied justice, it was in these circumstances that the application was filed and this extremely important aspect of the matter has been ignored by learned Trial Court while dismissing the application.

3. On the other hand, learned Senior Counsel appearing for the respondent referred to the order under challenge and submitted that the witness was not examined by any vice Counsel as alleged. The witness was examined by a duly engaged Counsel by the party, who had duly filed his power of attorney on behalf of said party and this was evident from the impugned order wherein it was observed by the learned Judge. Learned Senior Counsel has further submitted that the tone and tenor of the application also demonstrated that the filing of the application was nothing but an attempt to fill up the lacunae in the case. He took the Court through the contents of the application as well as the reply and submitted that in the backdrop of the averments made in the application as well as response thereto, the findings returned by the learned Trial Court in the application, being findings returned on the basis of record, same call for no interference by this Court under Article 227 of the Constitution of India.

4. I have heard learned Counsel for the petitioner as well as learned Senior Counsel for the respondent and have also gone through the order under challenge.

5. In terms of the impugned order, the application filed under Order 18, Rule 17 of the Civil Procedure Code read with Section 151 thereof has been rejected by the learned Trial Court by returning the following findings:-

“7. In the application in hand, the applicant has submitted that the original counsel was ill at the time of recording the detendant's evidence and the Jr. Counsel has examined the witnesses and he failed to declared hostile the witness namely Chuni Lal when he denied that he was the scribe of the Will in question. In fact, he inadvertently could not declared him as hostile. From the perusal of the case file and zimini order dated 13.06.2019 shows that the Id. Advocate Sh. Amit Sharma was present in the Court who was representing the defendant in this case. This zimini order nowhere shows that Power of Attorney dated 14.09.2015 filed on behalf of the defendant by their counsels also not shows that Sh. Amit Sharma Id. Advocate is the vice counsel for the applicant. In fact, defendant herself authorised Sh. Amit Sharma Id. Advocate to represent her case through her power of attorney. This fact clearly shows that Id. Advocate Sh. Amit Sharma was fully authorised by the applicant/defendant to represent her case on dated 13.06.2019.

8. Further, no doubt the witness Sh. Chuni Lal has denied that he was the scribe of the Will in question, but this fact itself is not sufficient to believe that this witness is deposing falsely and required to be declared as hostile. The applicant in the Para No.5 of this application has submitted that applicant