IMPORTANT POINT
Recalling of witness for cross-examination--Power under Order 18 Rule 17 CPC should not be exercised on the asking of the party to cross-examine his own witness.

Alok Singh, J.(Oral):- Petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India assailing order dated 19.4.2010 whereby the trial Court has rejected the application moved by the defendant – petitioner to recall his own witness DW5 for the purposes of cross-examination.

2. DW5 Hemant Kumar was examined in chief on 16.7.2009 by the defendant and was cross-examined on the same day by the plaintiff through his counsel. Statements of DW5 were closed after cross-examination. Thereafter, defendant moved an application recalling DW5 for the purposes of cross-examination by the defendant on the ground some clarifications are required on the income tax record of Neena Rani, wife of the plaintiff and the same is a public document.

3. Although, Section 154 of the Evidence Act provides a right of a party in a case to cross-examine witness cited by himself, but this right can be exercised before the closure of the statements. In the present case, statements of DW5 were closed and now the defendant is seeking to recall the witness. Order 18 Rule 17 CPC reads as under: -

17. Court may recall and examine witness. - The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.

4. From the perusal of Order 18 Rule 17 CPC, it can safely be said that the witness can be recalled by the Court, if the Court requires that witness for examination. However, power under Order 18 Rule 17 CPC should not be exercised on the asking of the party to cross-examine his own witness.

5. Moreover, there is no material on record which can justify recalling of DW5 by the defendant for cross-examination under Section 154 CPC.

Petition is devoid of merits and hence is dismissed.

------------