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2015 Supreme(Tri) 701
IN THE HIGH COURT OF TRIPURA, AGARTALA
DEEPAK GUPTA, J.
North East Transmission Co. Ltd. – Petitioners
Vs.
Shri Narayan Chandra Roy and Ors. – Respondent
CRP 106, 107, 108, 109 of 2015
Decided On : 14.10.2015.
Advocate Appeared:
For the Petitioners:Mr. S.M. Chakraborty, Sr. Advocate., Mr. Suman Bhattacharjee, Advocate.
For the respondent:Mr. D. Bhattacharjee, Advocate., Mr. A. Pal, Advocate.
The power to recall a witness under Order XVIII Rule 17 should be sparingly exercised, and no party should be denied justice due to the fault of its counsel.
Headnote:
Indian Telegraph Act - Recall of Witness - Order XVIII Rule 17 - Summary
Fact of the Case:
The petitioners sought to recall witnesses for cross-examination after their counsel was not present on the scheduled date. The trial court rejected the application under Order XVIII Rule 17 for recalling the witness, leading to the filing of petitions.
Finding of the Court:
The court allowed the petitions, set aside the impugned order, and directed the trial court to recall the witnesses for cross-examination, subject to payment of costs to the original claimants.
Issues: The main issue was the interpretation and application of Order XVIII Rule 17 of the CPC in allowing the recall of witnesses for cross-examination.
Ratio Decidendi: The court held that the power to recall a witness under Order XVIII Rule 17 should be sparingly exercised and not as a general rule, but a party should not be denied justice due to the fault of its counsel. The court also emphasized the duty of the counsel to appear on a scheduled date and the need for effective cross-examination of witnesses.
Final Decision: The petitions were allowed, and the trial court was directed to recall the witnesses for cross-examination, with a direction given to all courts in the State of Tripura to ensure proper cross-examination of witnesses.
These four petitions are being disposed of by a common judgment since the questions of law and fact involved are identical.
2. The respondents in all the cases have filed petitions claiming damages/compensation under the Indian Telegraph Act. In all the cases claimant-respondent No.1 filed the examination-in-chief of their witness and also produced the witness for cross-examination on 19.06.2015. Counsel for the petitioner who is the main contestant before the trial Court were not present on that day and an application was filed that since the counsel for the petitioner is not present the cases may be adjourned. This request was not accepted and the evidence of the claimant–respondent No.1 was closed without cross-examining their witness and the case was fixed for recording the evidence of the petitioner which was respondent in the Court below. Thereafter, the respondent on 22.07.2015 produced its own witness and also filed an application under Order XVIII Rule 17 praying to the trial Court that the witnesses examined on behalf of the claimants (respondent No.1 herein) be recalled for cross-examination by the present petitioners. This application was rejected by the impugned order. Hence, these petitions.
3. The main ground raised by Mr. S.M. Chakraborty, learned senior counsel is that the petitioners have engaged counsel and the counsel was not present. An application had been filed before the trial Court for adjourning the matter but the trial Court did not accept that application and therefore this led to the filing of the application under Order XVIII Rule 17 for recalling the witness.
4. On behalf of the respondent, it is contended by Mr. A. Pal, learned counsel for the respondent No.1 in CRP No.108 of 2015 that in terms of Order XVIII Rule 17, the witness cannot be recalled except to clarify issues. He has placed reliance upon the judgment of the Apex Court in Vadiraj Naggappa Vernekar vs. Sharadchandra Prabhakar Gogate : (2009) 4 SCC 410, wherein the Apex Court held as follows:-
“25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify and doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.”
“28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.”
5. Reference has made to earlier judgments and it has been stated that the Court can recall the witness to clarify doubts. These observations have to be appreciated in the light of the fact situation in that case. In the Apex Court, the main point raised was that the power under Order XVIII Rule 17 can only be exercised suo moto by the Court and not on the basis of application filed by any one of the parties. It was in this context that the observations in Section 25 are made.
6. The language of Order XVIII Rule 17 reads as follows:-
“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.”
This language leaves no manner of doubt that the Court is entitled any stage of the proceedings to recall any witness who has been examined and put such questions to him as the Court thinks fit. It is true that this power is not to be exercised to fill up the lacuna in the case but the question is whether the party should suffer because it’s counsel was not present in Court on that particular date. A party in legal proceedin
