2024:CGHC:33406 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 763 of 2024 • Smt. Sumitra Dhimar W/o Late. Shri Mohan Lal Dhimar Aged About 66 Years R/o Village Bastipara Anda, P.S. Anda, Tahsil Durg, District Durg, Chhattisgarh ... Petitioner versus

1. Mahaveer Jain S/o Late. Lakshmi Chand Jain Aged About 42 Years R/o Rishabh Nagar Durg, Tehsil Durg, District Durg, Chhattisgarh

2. Yuvraj Dhimar S/o Bhuwan Dhimar Aged About 44 Years R/o Beside Purohit Lauge Amapura Durg, Tahsil Durg, District Durg, Chhattisgarh

3. Deputy Registrar District Durg, Chhattisgarh

4. State Of Chhattisgarh Through The Collector, District Durg, Chhattisgarh ... Respondents For Petitioner : Mr. Jitendra Gupta, Advocate.

For Respondent/State : Mr. G.L. Uike, PL. Hon'ble Shri Justice Deepak Kumar Tiwari

Order On Board

02/09/2024

1. This petition has been filed under Article 227 of the Constitution of India assailing the legality and validity of the order dated 18.07.2024 passed in Civil Suit No.A/168/2018 by the 2^nd Additional Judge to the Court of 1^st Civil Judge Senior Division, District Durg (C.G.), whereby, an application filed by the petitioner/plaintiff under Order 18 Rule 17 of the CPC to recall the plaintiff witnesses to mark/exhibit certified copy of the revenue proceedings, was allowed on the same date, but the prayer to recall the plaintiff’s witnesses was declined and the subject application was dismissed.

2. Brief facts of the case are that the petitioner/plaintiff has filed a Civil Suit wherein, at the stage of the defendant’s evidence, the petitioner has filed two applications, one for taking documents on record i.e. certified copy of the revenue proceeding under Section 250 of the C.G. Land Revenue Code, which was allowed subject to cost of Rs.2,000/- and another application filed under Order 18 Rule 17 of the CPC for recalling the plaintiff’s witnesses on the ground to mark/exhibit the said document, which was dismissed. Hence this petition.

3. Learned counsel for the petitioner submits that the certified copy of the Revenue proceeding was already taken on record by the learned trial Court and only on the ground of delay, the subject application to recall the witnesses only for the purpose of enabling the plaintiff to mark/exhibit the said document for fair adjudication was dismissed, which is not sustainable and prays to allow the petition and set-aside the impugned order.

4. Heard learned counsel for the petitioner at length and also perused the documents annexed with the petition carefully.

5. It is well established that the power of the Court to recall a witness is discretionary and the Court is not bound to recall the witness whom the petitioner wanted to call. It is the discretion of the trial Court to consider whether it was necessary to reopen the evidence and if so, in what manner and to what extent.

6. There is presumption as to genuineness of certified copies under Section 79 of the Indian Evidence Act, 1872 and the Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the concerned Government who is duly authorized thereto. Further, at the time of the cross-examination, the petitioner/plaintiff would be at liberty to question the opposite side regarding such document as the said application has been filed at the stage of defendant’s evidence. As the said document is a certified copy, the Court may suo motu mark/exhibit the same giving opportunity to the other side to file documents in return of the same and if any objection is raised by the other side, the same shall be considered at the time of final adjudication.

7. With the aforesaid observations, this Writ Petition stands disposed of.

Sd/-

(Deepak Kumar Tiwari)

Judge Priyanka