IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 261 of 2011 Reserved on: 28.9.2011 Date of decision: 29.09.2011 Bhau Ram ... Petitioner Versus Smt. Kamla Devi and another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the respondents: Mr. G.C. Gupta, Senior Advocate with Mr. Ashish Jamalta, Advocate, for respondent No. 1. V.K. Ahuja, J.: This is a petition filed by the petitioner/defendant under Article 227 of Constitution of India, for setting aside the order passed by the learned Civil Judge (Junior Division), Court No. 4, Shimla, dated 20.5.2011, vide which the application filed by the petitioner for re- examination of the witnesses of the plaintiff was dismissed. 2. A notice of the petition was issued to the respondent. 3. I have heard the learned counsel for the parties and have also gone through the record. 4. The submissions made by the learned counsel for the petitioner were that the question in regard to the fact as to whether the 1Whether reporters of Local Papers may be allowed to see the judgment? 2 petitioner was the legal representative of Smt. Reshmu was decided in some previous proceedings and the suit had been filed by the respondent/plaintiff making similar allegations. The case was fixed for petitioner/defendant’s evidence before the learned trial Court after the evidence has been closed by the plaintiff and the present application was filed to recall the witnesses and confront them with their previous statements made in previous proceedings, which were also in regard to the question as to whether the petitioner was a legal representative of Smt. Reshmu or not. It was alleged in the application filed by the petitioner that two witnesses deserve to be confronted with their previous statements as they could not be confronted with their previous statements inadvertently. 5. The learned counsel for the respondent had strongly opposed the application on the ground that no questions were put up to the witnesses in their cross-examination regarding previous statements and there is nothing on record to show that they had resiled from their previous statements and as such, they were not required to be confronted with their previous statements. The application was also opposed on the ground that power is given to the Court under Order 18 Rule 17 C.P.C. and not to a party and the Court may call the witnesses for cross-examination to clarify some ambiguity. It was also submitted that the powers under Article 227 of the Constitution of India cannot be exercised since the order does not suffer from any illegality and these powers are supervisory in nature. It was submitted that it is no ground that these questions were not put up inadvertently and as such, there was no merit in the application, which was rightly dismissed by the learned trial Court. To substantiate his submissions, learned counsel for 3 the respondent had relied upon the decision in Vadiraj Naggappa Vernekar (Dead) through LRs. Vs. Sharadchandra Prabhakar Gogate, (2009) 4 Supreme Court Cases 410. The observations made in Paras 30 and 31 are relevant, which are being reproduced below:- “30. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. 31. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the court’s discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.” 6. On the other hand, learned counsel for the petitioner had submitted that even negligence is a good ground to allow the application for recalling of the witnesses for further cross-examination. It was also submitted that these powers can be exercised by a party by making proper application and in appropriate cases, the application can be allowed, even if it has been moved at the instance of a party. To substantiate his submissions, learned counsel for the petitioner had placed reliance upon the following decisions:- The decision in Ganesh Dutt and others Vs. Dharam Dutt and others, 1992(2) Sim. L.C. 188, of a learned Single Judge 4 of this Court, was relied upon. The observations made in Para-4 are relevant and are being reproduced below:- “Order 18, Rule 17-A, C.P.C. is a rule of procedure which is meant to advance the cause of justice and not to thwart it. These provisions are not to be interpreted in a manner which defeats the ends of justice. Even if it is found that a party has been negligent in not producing evidence which is necessary for deciding the dispute between the parties, in the ends of justice and fair play such evidence should be allowed and the opposite party can be compensated by payment of costs. In the present case, even if one of the reasons given in the application is incorrect, permission for producing additional evidence should not be refused on that ground alone. In order to decide whether the will in question was genuine document, evidence of one of the marginal witnesses not produced by the respondents-defendants, propounders of the will, is necessary to advance the ends of justice.” The decision in Satinder Singh Vs. Sukhdev, 1999(3) Shim. L.C. 457, was relied upon. The observations made by the then Hon’ble Chief Justice of this Court in Para-8 are relevant and are being reproduced below:- “Court is of the view that the Court below has mis-directed itself in rejecting the application and denying the petitioner of an opportunity to recall and examine the plaintiff examined earlier as PW-4 with reference to a particular document, to which the plaintiff was said to have been party by signing and issuing the same. It is by now well settled and often reiterated that the procedural law should be a guide as also be the handmaid to render 5 substantial justice. The Court below in rejecting the request and denying the opportunity to the petitioner-defendant has committed not only a grave error but has chosen to stall a relevant piece of material in evidence being brought on record, which would help the Court itself to effectively decide the issue.” 7. This Satinder Singh’s case (supra) was referred to by their Lordships’ of the Supreme Court in Vadiraj Naggappa’s case. However, in Vadiraj Naggappa’s case, their Lordships had held that no case was made out for recalling of the witness. It was observed that the evidence was available at the time when the affidavit was prepared and neither new evidence was sought to be introduced nor new facts discovered subsequently. In the present case, the facts that the witnesses have resiled from their previous statements or not, will only come to know when they are confronted with their earlier statements made in Court in view of the fact that no questions were put up to the witnesses in regard to the previous statements, it cannot be said that they have resiled from their statements and they have to be confronted with their previous statements. The question of their resiling will arise when they will be confronted with their previous statements only if they are put questions in regard to the previous statements and since no questions were put up to them due to inadvertence, the applicant had to be given an opportunity to confront the witnesses with their previous statements. It is clear that it is no ground to reject the application since it was alleged that due to inadvertence, these questions could not be put up and even negligence can be condoned and the party can be permitted to recall the witnesses. Moreover, insofar as the 6 question is concerned that these powers cannot be exercised by the party. It is clear that these powers can be exercised at the instance of the party and in case the order passed is not in accordance with law and an opportunity had to be given to the petitioner for recalling the witnesses, the application deserves to be allowed and accordingly, the impugned order is set aside. However, in view of the fact that the case was fixed for defendant’s evidence and on two dates, no evidence was led by the defendant when the present application was filed. The application is allowed subject to ` 1000/- as costs, payable to the respondent before the learned trial Court, who shall summon the witnesses named in the application on deposit of PF etc. by the petitioner/defendant. 8. In view of the above, the petition stands allowed and all the pending miscellaneous applications, if any, stand disposed of. 9. Parties through their learned counsel are directed to put up their appearance before the learned trial Court on 20th October, 2011. A copy of this judgment be sent to the learned trial Court for information. Record be returned. ( V.K. Ahuja ), September 29, 2011 Judge (BSS)