The power to recall witnesses under Order 18 Rule 17 CPC is to clarify ambiguities, not to fill evidentiary gaps, and should be exercised sparingly.

JUDGMENT :

Savitri Ratho, J.

This application has been filed by the plaintiff-petitioner with a prayer for quashing the impugned order dated 28.12.2021 passed by the learned Civil Judge (Senior Division), Pipili (hereinafter “trial court”) in Civil Suit No.45/390 of 2017/2010, rejecting the application filed under Order-18 Rule-17 of the Code of Civil Procedure (in short “CPC”) to recall the C.W.1, Laxmidhar Das (the Amin Commissioner) for his further cross-examination at the cost of the plaintiff.

FACTUAL BACKGROUND

2. That the suit had been filed by the plaintiff-petitioner praying for declaration of his right, title and interest over the suit property, confirmation of possession and permanent injunction against the defendant-opposite party and other reliefs.

3. Written statement and counter claim was filed by the defendant and written statement to the counter claim was filed by the plaintiff. An application had been filed by the defendant to appointment of a survey knowing Commissioner, along with the questions proposed to be asked to him. The Amin Commissioner was appointed under Order 26, Rule 9 of the C.P.C. and submitted his report. The plaintiff-petitioner filed an objection to the report stating that it should be rejected. The defendant-opposite party also filed an objection to the report. The Amin Commissioner was examined on 23.11.2019 as C.W.1 and was cross examined by both the parties.

4. After about six weeks, an application under Order -18, Rule 17 of the C.P.C was filed by the plaintiff-petitioner to recall C.W.1, the Amin Commissioner at his cost, stating that various important questions could not be put to him as the plaintiff was of the impression that he had been examined as witness of the defendant in I.A No. 198 of 2010 and not as a court witness. Objection to the same was filed by the defendant stating that the Amin Commissioner was deputed to answer the questions posed by the defendant and had submitted his report after proper scientific investigation during hearing of the interim application, application had been filed by the defendant for examining the Amin Commissioner for proper adjudication and the application had been allowed and his entire fees had been paid by the defendant. He was examined as a witness in the original suit on 23.11.2019 and his report was exhibited in the suit. He had been cross-examined by the counsel for the plaintiff a senior lawyer. So after disposal of the interim application, he cannot say that some questions were left out.

IMPUGNED ORDER

5. The learned trial court rejected the application holding that the suit was of the year 2010 and the learned counsel for the plaintiff-petitioner and the defendant had already cross-examined the Amin Commissioner who had given his report after thorough verification of the suit plot, on 23.11.2019 and the application had been filed after one and half months.

SUBMISSIONS

6. Mr. B.B. Mishra, learned counsel for the petitioner submitted that the learned counsel for the plaintiff-petitioner could not properly cross-examine the Amin Commissioner as he was of the impression that he was the witness of the defendant and was being examined in IA No.198 of 2010 and the same is mentioned in his petition. But this was not considered by the learned trial Court. To convince the Court that the plaintiff was justified in believing that the Amin Commissioner was the witness of the defendant, he has drawn the attention of the Court to the averments at paragraph-4 of the objection of the defendant (Annexure-7), where he has stated that after the case was transferred to the Court of the learned Senior Civil Judge, Pipili while hearing the interim application, the defendant had filed the application in the suit to examine the Amin Commissioner for proper adjudication of the interim case and the application was allowed and the defendant had paid the fees of the Amin Commissioner who was examined on 23.11.2019 and the Amin Commissioner report was exhibited in the origi