HI GH COURT OF UTTARAKHAND AT NAI NI TAL HON’BLE SRI JUSTICE MANOJ KUMAR TIWARI Writ Petition Misc. Single No. 966 of 2021

11^TH JULY, 2025 Shashibala --Petitioner Versus Virendra Kumar --Respondent -------------------------------------------------------------------

Presence:-

Mr. Siddhartha Singh, Advocate for the petitioner.

Mr. Jagdish Chandra Belwal & Mr. Kailash Chandra Tiwari, Advocates for the respondent.

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JUDGMENT

By means of this petition, filed under Article

227 of the Constitution, petitioner has sought the following relief:-

“(i) Issue a writ, order or direction in the nature of certiorari calling for the record of the case and to quash judgment dated 27.02.2021 (Annexure No. 1), in regard to issuance of notice instead of granting interim injunction and further to allow the application of temporary injunction.”

2. Learned counsel for the petitioner, however, submits that petitioner is aggrieved by rejection of her application filed under Oder 18 Rule 17 CPC by the Trial Court, as affirmed by Revisional Court. He submits that the Trial Court rejected the application under Order 18 Rule 17 CPC, vide order dated 16.08.2019 and the Revisional Court affirmed the said order, vide judgment dated 27.02.2021, rendered in Civil Revision No. 39 of

2019.

3. From the pleadings made in the writ petition, it is revealed that respondent filed a suit for partition, inter alia on the ground that he is co-owner in respect of the property in question, which was purchased jointly by a common sale deed in the name of plaintiff and defendant. The said suit was numbered as Civil Suit No. 128 of 2010. In the said suit, after cross- examination of plaintiff, petitioner moved an application under Order 18 Rule 17 CPC, seeking recall of the plaintiff for the purpose of cross-examination. In the said application, it was stated that plaintiff could not be cross examined on the question of his financial capacity to purchase the property and other attending circumstances, which were prevailing at the time of execution of sale deed.

4. Learned Trial Court [Civil Judge (Junior Division), Rudrapur] rejected the said application vide order dated 16.08.2019 by holding that Order 18 Rule 17 CPC only enables the Court to recall a witness, in order to clarify any issue or doubt either suo moto or at the request of any party, however, it does not create any right in favour of a party to re-open the evidence for the purpose of further examination-in-chief or cross-examination.

5. Petitioner, thereafter filed Civil Revision No. 39 of 2019 challenging Trial Court’s Order. The said revision was also dismissed by learned District Judge, Udham Singh Nagar, vide judgment dated 27.02.2021. In this petition, petitioner has challenged both the aforesaid judgment and orders.

6. Mr. Siddhartha Singh, learned counsel for the petitioner submits that in the written statement, filed by petitioner, it was pleaded that entire sale consideration for purchasing the property in question, was paid by petitioner’s husband and name of the plaintiff (respondent herein) was added in the sale deed as purchaser, in good faith; however, during cross- examination, question regarding financial capacity of the plaintiff to purchase 1/2 share of the property could not be put to him; since that question goes to the root of the matter, therefore, the application for recall of the plaintiff was moved, which deserved to be allowed; the learned Trial Court erred in rejecting the said application and the Revisional Court also committed error in not allowing the revision filed by petitioner.

7. Per contra, Mr. Jagdish Chandra Belwal, learned counsel for the respondent submits that provision contained in Order 18 Rule 17 CPC enables a Court to recall a witness, if there is some ambiguity in the evidence or the Court wants to elucidate on some points. He further submits that this provision cannot be invoked for filling up omission in the evidence