Recalling of Witness – Where the Court is satisfied that non-production of evidence earlier was for valid and sufficient reasons, the Court may exercise its discretion to recall the witnesses or permit the fresh evidence.

Mrs. Rekha Mittal, J.:- The present petition directs challenge against order dated 7.12.2017 (Annexure P-5) passed by the learned Rent Controller, Bathinda whereby application for recalling Som Chand and Raj Kumar for further cross examination has been dismissed.

2. Counsel for the petitioner has submitted that respondents have filed application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 ( in short “the Act”) for eviction of the petitioner from shop situated on the ground floor, forming part of building bearing MC No. 4522 situated in Middu Mal Street, Bathinda, detailed in head note of the petition, on the ground of bona fide personal necessity of Raj Kumar applicant No. 2. Applicants Som Chand and Raj Kumar appeared in the witness box and were cross examined by counsel representing the petitioner before the Court below. The petitioner filed application (Annexure P3) for recalling Som Chand and Raj Kumar for further cross examination in respect of certain facts averred in paras 2 to 7 of the application but the same has been dismissed by the Rent Controller without examining plea of the petitioner in right perspective that in case the petitioner is not permitted to further cross examine the applicants on vital aspects of the matter raised in the application, it would be of serious consequence and lead to miscarriage of justice. According to counsel, no prejudice shall be caused to the respondents in case they are recalled for further cross examination as they can well be compensated with costs for being recalled for cross examination as well delay likely to occur because of their recalling for further cross examination.

3. I have heard counsel for the petitioner, perused the paper book particularly the application (Annexure P3), reply thereto (Annexure P4) and the order impugned (Annexure P5).

4. Before adverting to the submissions made by counsel for the petitioner, it is appropriate to recapitulate that Order 18 Rule 17 of the Code of Civil Procedure (in short “CPC”) enables the Court to recall any witness who has been examined and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit requesting the Court to exercise such power. As per the settled position in law, power under Order 18 Rule 17 CPC is discretionary and should be used sparingly in appropriate cases to enable the Court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in evidence of a witness who has already been examined. However, Hon’ble the Supreme Court in K.K.Velusamy vs. N. Palanisamy 2011(2) RCR (Civil) 875 has held that if a party comes across some evidence which he could not lay his hands earlier or some evidence in regard to the conduct or action of the other party comes into existence, the Court may in exercise of its inherent power under Section 151 CPC permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the Court may deem fit to impose. However, the Court has added a word of caution by saying that power under Section 151 or Order 18 Rule 17 CPC is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice and the Court is satisfied that non-production earlier was for valid and sufficient reasons, the Court may exercise its discretion to recall the witnesses or permit the fresh evidence.

5. Reverting to the case at hand, the petitioner in paras 2 to 5 of the application has sought to recall the witnes