C.R. No. 3665 of 2010 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 3665 of 2010 (O&M) Date of Decision : 19.07.2010 Hans Raj .......... Petitioner Versus Sanjeev Nehra ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Ravinder Malik, Advocate for the petitioner. **** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against the order dated 8.5.2010, passed by the learned Addl. Civil Judge (Sr.Div.), Jhajjar, vide which application moved by the petitioner under Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure stands declined. The petitioner moved an application for recall of PW-3 for the purpose of further cross-examination, on the sole plea, that the said witness was not put some material questions due to inadvertence, which were necessary for just and proper decision of the case. The learned trial Court, rejected the application by holding, that number of opportunities were given to the petitioner, therefore, there is no ground, whatsoever to recall a witness to put C.R. No. 3665 of 2010 -2- ***** additional questions, as prayed by the learned counsel for the petitioner. The learned trial Court, placed reliance on the judgments, in the cases titled as Surjit Kaur and another Vs. Pritam Singh and others, 2003(3) LJR 297 and Surinder Kaur Vs. Karanbir Singh, 2004(3) LJR, 145 to hold, that a party can not be permitted to re-examine any witness to fill up the lacuna in the case, and dismissed the application. The learned counsel for the petitioner contended, that the further cross-examination of PW3 was necessary as the questions to be put to him were very material. The learned counsel for the petitioner further contended, that the order passed by the learned trial Court can not be sustained, in view of the judgment of the Hon'ble Supreme Court in the case of Vadiraj Naggappa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate 2009(2) R.C.R. (Civil) 508, wherein the Hon'ble Supreme Court has been pleased to lay down as under :- “ 16. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness C.R. No. 3665 of 2010 -3- ***** who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. 17. It is now well settled that the power to recall any witness under Order 18 Rule 17 C.R. No. 3665 of 2010 -4- ***** CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. 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. 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.” The reading of the judgment of the Hon'ble Supreme Court shows, that the law laid down by the Hon'ble Supreme Court is of no help to the petitioner, rather it supports, the findings recorded by the learned trial Court. In the judgment the Hon'ble Supreme Court laid down, that the provisions of Order 18 Rule 17 of the Code of Civil Procedure are not intended to be used to fill up omissions in the C.R. No. 3665 of 2010 -5- ***** evidence of a witness who is already examined. This is precisely the plea taken in the application i.e. to say that certain material questions were left, when PW3 was examined. No merit. Dismissed. 19.07.2010 (VINOD K. SHARMA) 'sp' JUDGE