The absence of a provision in the Evidence Act to bar a party from exercising the right to cross-examine afresh, if the statement of the witness of the opposing party is prejudicial, allows for the recall of a witness. Technicalities should not hinder the administration of justice.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The Order of the Learned Civil Judge, East Sikkim, at Gangtok, dated 20-09-2016, rejecting the prayer of the Petitioners under Order XVIII Rule 17, read with Section 151 of the Code of Civil Procedure, 1908 (for short “CPC”) and Sections 137, 138 and 145 of the Indian Evidence Act, 1872, in Title Suit No.10 of 2013, Mohd. Shahid and Others vs. Mrs. Marium Iqbal and Others, is being questioned herein.

2. The Petitioners aggrieved by the rejection of their Petition under Order XVIII Rule 17 read with Section 151 of the CPC and Sections 137, 138 and 145 of the Indian Evidence Act, 1872 (for short “Evidence Act”), have filed this Petition under Articles 226/227 of the Constitution of India, for issuance of a writ of/or in the nature of mandamus/certiorari and/or any other appropriate writ, orders or directions of like nature.

3. The grounds advanced herein are that on 16-08-2016, the date fixed for confirmation of the evidence on affidavit and cross-examination of the Defendants witness, Janab Ibrahim Naik, due to a mis-communication between Learned Assisting Junior Counsel, Mr. Manish Kr. Jain and Learned Senior Counsel, Mr. A. Moulik, for the Petitioners/Plaintiffs (hereinafter “Plaintiffs”), the Learned Senior Counsel was given to understand that no case was fixed in any of the Courts in the East District of Sikkim, at Gangtok. Consequently, the Senior Counsel proceeded to Gyalshing, West Sikkim, to attend to a Bail hearing before the Sessions Court. Once there, he received information from the Junior Counsel that the aforesaid witness was present in the Court and adjournment was declined. Counsel was permitted to inform the Senior Counsel to be present by 5 p.m. for cross-examination of the witness. The Senior Counsel accordingly reached the Court at Gangtok, at 3.45 p.m. by which time the witness had been cross-examined by the Junior Counsel, on the insistence of the opposing Counsel. It is now the case of the Petitioners that, the cross-examination was conducted by a Counsel inexperienced in such matters. That, during the course of the cross-examination, the witness has brought out various facts and voluntary statements which were not revealed in his “evidenceon- affidavit”. Moreover, the statements made by the witness are not correct, as he has inserted new facts, inasmuch as on one hand, the witness claims that the concerned property was ‘gifted’, then contradicts this stand by claiming it was ‘partitioned’, leading to anomalies. Confusion prevailed over the date fixed, leading to unpreparedness exacerbated by the lack of instructions and requisite experience of the Junior Counsel. It is vehemently contended that unless Senior Counsel is allowed to re-cross examine the witness in respect of the new facts brought out by the witness, through his voluntary statements, irreparable loss and prejudice will be caused to the Plaintiffs. That, the Learned Trial Court ought to have allowed the Application filed by the Plaintiffs in order to effectively adjudicate the Suit as the Senior Counsel had been conducting the matter. To fortify his submissions, strength was drawn from Hoffman Andreas vs. Inspector of Customs, Amritsar, (2000) 10 SCC 430; Municipal Corporation, Gwalior vs. Ramcharan (D) by L.Rs. and Others, AIR 2003 SC 2164; Brij Kishore S. Ghosh vs Jayantilal Maneklal Bhatt and Another, AIR 1989 Gujarat 227; U.K. Ghosh vs. M/s. Voltas Ltd. and Another, AIR 1994 Orissa 131; C. T. Muniappan vs. The State of Madras, AIR 1961 SC 175 ; K. K. Velusamy vs. N. Palanisamy, (2011) 11 SCC 275 and S. Yuvaraj vs. State, MANU/TN/2062/2013 : Crl. O.P. No.7142 of 2013 of the Madras High Court. It is, therefore, prayed that the impugned Order be set aside and quashed and the Petitioner be allowed to re-cross examine the said witness.

4. Resisting the arguments advanced for the Petitioners, Learned Counsel