IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19669 of 2010 SMT. RITA DEVI & ANR . Versus SHEO JANAM SINGH & ORS . ----------- 7/ 03/01/2011 Heard learned counsel for the petitioners and for the respondents 1st set/plaintiff. No one appears on behalf of opposite party No.4 despite having entered appearance. The respondent 1st set as the plaintiff filed Title Suit No.281/02 for specific performance of contract. The present petitioners were defendants therein along with the present opposite party No.4. Opposite party No.4 came to be examined as special witness on 16.9.2003 and was discharged. The petitioners as defendants then filed an application under order 18 Rule 17 CPC on 2.4.2007 for recalling opposite party No.4 as they had been denied the right to cross- examine the special witness. It was further averred that copies of the written statement filed by opposite party No.4 were never served upon the present petitioners also. Learned counsel for the petitioners does not make a serious issue with regard to non-service of the written statement of opposite party No.4 but assails the impugned order dated 12.6.2007 that it was not in the interest of justice to allow the evidence of opposite party No.4 to remain uncontroverted by cross-examination which may be - 2 - to the prejudice of the petitioners. Learned counsel for the respondent 1st set/plaintiff has opposed the present writ application urging that the impugned order dated 12.6.2007 adequately notices the conduct of the petitioners in filing a belated application under Order-XVIII, Rule-11 for recall/re-examination of the special witness. Opposite party No.4 was examined as a special witness on 16.9.2003. The petitioners then filed an application only on 2.4.2007 for recall of the witness. Even if the ground urged by them in paragraph-3 of their application is taken into consideration with regard to change of counsel and therefore the inability to deal with the matter appropriately on 16.9.2003, there is no explanation whatsoever on behalf of the petitioners why no expeditious steps were taken by them after 16.9.2003 till 2.4.2007 for recall of the special witness. It is not in controversy that several dates have transpired in the suit thereafter. This Court is therefore satisfied that the petitioners have not furnished any adequate explanation for this inordinate long delay in preferring the application for recall of witness. To that extent, the respondent 1st set/plaintiff is justified in urging that the petitioners were only attempting to delay the disposal of the suit. However, this Court does find that the petitioners had furnished an explanation for their inability - 3 - to cross-examine on 16.9.2003 due to absence of a counsel by reason of the change of counsel. The impugned order proceeds on the assumption that because the appearance of the petitioners had been filed, the special witness was examined in their presence on 16.9.2003. The impugned order does not deal with and discuss the grounds urged by the petitioners in explanation for their failure to cross- examine the special witness on 16.9.2003. The absence of the counsel for valid reasons on the date when the special witness may have been examined can certainly be a valid ground to urge for recall of the witness. Further proceedings in the Suit were stayed on 13.9.2007 at the behest of the petitioner. The respondents urge delay in disposal of the suit at the behest of the petitioners. The Court has held that the petitioners must share a part of the blame also. The impugned order dated 12.6.2007 is therefore set aside subject to payment of costs of Rs.8000/- by the petitioners to the plaintiff. The petitioners are permitted to cross-examine opposite party No.4 on a day-to-day basis and conclude the same within a maximum period of one month from the date of appearance of opposite party No.4. Should the petitioners default in examining opposite party No.4 on two consecutive dates, the opposite party No.4 shall stand discharged when - 4 - the suit shall proceed for its conclusion on its own merits in accordance with law. The writ application stands disposed. KC ( Navin Sinha, J.)