CR No. 3474 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No. 3474 of 2011 (O&M) Date of Decision: 25.5.2011. Rikhi Ram .......Petitioner Vs. Smt. Surenderjit Kaur and another ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Deepak Sharma, Advocate for the petitioner. ..... SABINA, J. Claimants-respondents had filed a claim petition under Section 166 of the Motor Vehicle Act, 1988 on account of death of Gurwinder Singh in the motor vehicle accident. During the pendency of the claim petition, an application was filed by the petitioner-respondent No.1 for permission to recall PW-2 for further cross examination. Vide the impugned order dated 7.5.2011, the said application was dismissed by the tribunal. Hence, the present petition by respondent No.1. Learned counsel for the petitioner has submitted that the tribunal had erred in dismissing the application for recalling the witness PW-2. Certain important questions could not be put to the witness during his cross examination. The witness had given a different number of the offending vehicle when his statement was recorded before the police but had given different number qua the offending vehicle while appearing in the witness CR No. 3474 of 2011 (O&M) -2- box. The witness could not be cross examined in this regard and hence, necessity arose to recall the said witness. In support of his argument, learned counsel for the petitioner has placed reliance on 'Om Prakash versus Sarupa and others AIR 1981 Punjab and Haryana 157' wherein it was held as under:- “Under Rule 17, reproduced above, the Court may recall any witness at any stage of the suit, who has been examined earlier and may put him such questions as the Court thinks fit.” Learned counsel for the petitioner has next placed reliance on 'Muthukaruppan @ Velayutham versus Suresh @ Muthukaruppan, 2000(1) RCR (Civil) 655', wherein it was held as under:- “From the above, it is clear that it is for the Court which had opportunity to see the witness to find whether further opportunity should be given for examination. A party should not suffer merely because the counsel omitted to put certain vital questions. When the power to recall witness could be exercised by court and applicant shows that the cause is made out for recalling witness and the court also finds that the application is filed with bona fides, the same is not liable to be interfered with under Section 115 of Code of Civil Procedure. In this case, the counsel who cross examined the witness had withdrawn from the case and new counsel when he studied the case found that some material questions were omitted to be asked. Lower Court CR No. 3474 of 2011 (O&M) -3- believed that statement and exercised its discretion in favour of respondent. The discretion exercised by lower court cannot be said as capricious or arbitrary. I find no ground for interference is made out in the order of lower court.” After hearing learned counsel for the petitioner, I am of the opinion that the instant petition deserves dismissal. Order 18 Rule 17 of the Code of Civil Procedure reads as under:- “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.” Although as per the above provision, the court may at any stage recall any witness who has been examined but in the present case, PW-2 was duly cross examined by the counsel for the petitioner on 18.3.2010. It is not a case where some new facts have come to the notice of the petitioner which necessitated the re-examination of PW-2. Now by recalling the witness, the petitioner wants to cross examine PW-2 qua the number of offending vehicle, given by him in his statement before the police and his statement before the court and location of the accident. The statement of the witness, made by him before the police had already been recorded, before the witness was cross examined and was, thus, in the notice of the petitioner but the witness was not confronted with the said statement. Moreover, the petitioner could not cross examine PW-2 qua the location of the accident as CR No. 3474 of 2011 (O&M) -4- well as qua the discrepancy in the number of the offending vehicle when the witness was cross examined on 18.3.2010. The witness cannot be recalled at this stage to fill up any of the lacuna left during his cross examination. The judgments relied upon by the learned counsel for the petitioner fail to advance the case of the petitioner as these are not applicable to the facts of the present case. No ground for interference is made out. Dismissed. (SABINA) JUDGE May 25, 2011 Gurpreet