IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 116 of 2010 Date of decision: 9.11.2010 Hiru …Petitioner. Versus Tulsi Devi and another …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. R.R.Rahi, Advocate. For the respondents: Mr. Tarlok Chauhan, Advocate. Deepak Gupta, J. (Oral) 1. This petition is directed against the order dated 10th March, 2010 whereby the learned trial Court has dismissed the application filed by the plaintiff for recalling DW-4 for cross-examination. 2. Briefly stated the facts of the case are that on 3rd August, 2009 statement of DW-4 was recorded. It is apparent from the order sheet of the said date that the plaintiff was present in person but his counsel was not present. The order itself shows that the plaintiff was apprised of his 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 right to cross-examine defendant No.4 but he could not cross-examine the witness. 3. In our system of adversarial litigation it can hardly be expected that a party belonging to rural area will be able to cross-examine the witness. The witness i.e. DW-4 was none other than defendant No.1 and one of the most important witnesses in this case. In fact, it would have been more appropriate for the Court to have adjourned the matter on 3rd August, 2009 when counsel for the plaintiff was not present. Immediately, thereafter an application was moved in which it was stated that the counsel could not be present since he was out of station and therefore request was made that DW-4 be recalled for cross- examination. 4. The provisions of Order 18 Rule 17 read as follows:- “17. 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.” 3 5. This order clearly envisages that a witness who has been examined can be recalled by the Court for putting such question to him as the Court thinks fit. 6. The learned trial Court has totally misread the judgement passed by the Bombay High Court in Balkrishan Shivappa Shetty vs. Mahesh Nenshi Bhakata AIR 2003 Bom. 293. The Bombay High Court was dealing with a case where the witness had already been cross-examined and the question before it was whether at the request of the party the witness could be recalled for further cross- examination or not. The present case stands on a totally different footing. I may also point out that the learned trial Court has referred to the Bombay High Court as the Apex Court in the impugned order. This shows that the learned Court has not even understood what is the meaning of the Apex Court. 7. The judgement of the Rajasthan High Court relied upon by the trial Court has no applicability to the facts of the present case. In that case, the party who was seeking indulgence of the Court 4 had been given a number of opportunities to cross-examine the witness and it was only thereafter that the right to cross-examine was closed. 8. Here, we are dealing with a case where the party was present in Court but his counsel was not present. This Court has repeatedly held that a party should not suffer for the fault or absence of the counsel. In Bish Ram and another vs. Smt. Kalawati and others Indian Law Reports (Himachal Series) (1980) 49 while dealing with the question of condonation of delay where delay had occurred due to fault of the counsel this Court held that a party should not suffer for the mistake or wrong advice of the counsel. 9. Assuming that Order 18 Rule 17 did not strictly apply in the present case, mere mentioning of a wrong provision would not disentitle the plaintiff from invoking the inherent powers of the Court vested in it under Section 151 CPC. In Salem Advocate Bar Association, T.N. vs. Union of India, (2003) 1 SCC 49 the Apex Court has gone to the extent of saying 5 that even though Order 18 Rule 17-A has been specifically deleted from the statute book then also the Court has inherent powers to permit a party to lead additional evidence at a later stage though obviously reasons to be recorded in writing and on such terms as may appear just. 10. For the aforesaid reasons, I am clearly of the view that the approach of the learned trial Court was hypertechnical in nature. It is settled position of law that rules of procedure are to be used to advance the cause of justice and not thwart the same. True it is that if the party is wholly negligent then the Court may not come to its rescue but where the party is not at fault as in the present case and the counsel has clearly stated that he was out of station on the date the Court should have taken a more pragmatic and reasonable view of the matter and should have allowed the plaintiff an opportunity to cross-examine DW-4, who was defendant No.1. 6 11. For the foregoing reasons, the present petition is allowed. The order of the learned trial Court is set-aside and the defendant No.1 shall appear before the trial Court for the purpose of cross-examination. Both the parties are directed to appear before the learned trial Court on 13th December, 2010. Dasti copy. 9th November, 2010 (Deepak Gupta) ™ Judge