IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Present:

Hon'ble Justice Shampa Sarkar C.O.12 of 2024 Tirupati Vinimoy Private Limited Vs.

Karnani Properties Limited For the petitioner : Mr. Bhaskar Ghosh, Sr. Advocate, Mr. Rwitendra Banerjee, Mr. Usha Doshi For the respondent : Mr. Aniruddha Chatterjee, Sr. Adv.

Mr. Tanmoy Mukherjee, Mr. Neelesh Chowdhury, Ms. Anuradha Poddar, Hearing concluded on: 24.01.2025 Judgment on: 04.03.2025 Shampa Sarkar, J.:-

1. This is an application under Article 227 of the Constitution of India filed by the defendant in Title Suit No. 35486 of 2014. The order dated October 17, 2023, passed by the Judge, Vth Bench, City Civil Court at Calcutta, is under challenge.

2. By the order impugned, the learned judge rejected the application dated December 20, 2021, filed by the defendant under Section 151 of the Code of Civil Procedure. The application was filed by the petitioner, defendant in the suit, with a prayer for recall of the PW1. The reason for such prayer for recall was that, questions mentioned in the said application, which were germane for the purpose of deciding the real controversy between the parties and the issues involved in the suit, should be allowed to be put to the PW1, in further cross-examination. If such prayer was not allowed, irreparable loss and injury would be caused to the defendant and vital questions pertaining to the registration of the deed of lease would be left out. If such questions were allowed to be put in cross-examination of the PW1, upon his recall, the fate of the suit would be in favour of the defendant.

3. The plaintiff/opposite party contested the application by filing a written objection. It was submitted on behalf of the opposite party before the learned trial judge that the factum of registration of the agreement dated March 17, 2005, was attempted to be brought on record by an amendment of the written statement. Such prayer was disallowed and the same was affirmed by the High Court and ultimately by the Hon’ble Apex Court. Moreover, the application for recalling of the plaintiff's witness for further cross-examination should not be entertained as no exceptional circumstances had been provided by the petitioner, which would necessitate such recall. By amendment to Code of Civil Procedure, the provisions of Order 18 Rule 17A of the Code of Civil Procedure had been deleted. An application under Section 151 of the Code of Civil Procedure should not be entertained, as it was not an alternative mechanism available under the Code, for recall of witness.

4. The learned trial judge was of the view that the Memorandum of Agreement was registered on January 8, 2018, though it was presented for registration earlier. The cross-examination of PW1 was held on June 20, 2018, after the registration of the Memorandum of Agreement. Therefore, if the questions set forth in the application was allowed to be put to the witness on recall, the same would amount to filling up the lacuna in the cross-examination done earlier. The law prohibited recall of witness for filling up the lacuna. The questions could have been put at the appropriate stage. The registration of the document was completed before the cross- examination of the PW1 was over. The learned court held that the ingredients of Order 18 Rule 17 of the Code of Civil Procedure were not all not available in the application for recall.

5. Mr. Bhaskar Ghosh, learned Senior Advocate, submitted that, while preparing the evidence-on-affidavit of the defendant's witness, it was noted that few questions, which were required to be asked to the plaintiff's witness no.1, during the cross examination, had been left out. The questions were necessary to elicit answers which would have a direct bearing on the ultimate outcome of the suit. The factum of registration would impact the maintainability of the suit. Thus, those questions were relevant, pertinent and necessary.

6. The recall was justified in view of the str