IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.491 of 2006 SMT. TARA DEVI Versus DHARMENDRA KUMAR & ORS ----------- 13 16.10.2008 Heard Counsel for the petitioner and Counsel for the opposite parties. In the opinion of this Court, the impugned order rejecting the prayer of the petitioner for recall of the witnesses examined by the plaintiffs-opposite parties suffers from both jurisdictional error and material illegality. All that the Court below in the context of the aforementioned relief was required to examine correctness of averment made by the petitioner in her application seeking recall of the witnesses as to whether the plea of non-supply and/or service of the statement of examination-in-chief (affidavit) of the witnesses of plaintiff opposite parties on the Counsel appearing on behalf of the petitioner or not was borne out/supported from the relevant records. It was so because a specific plea was taken that though witnesses of the plaintiffs were examined but could not be cross-examined by the Counsel for the petitioner because their statement on affidavit by way of examination-in-chief were not supplied on them. Unfortunately a specific statement made in paragraph no.8 of the application of the petitioner filed in this regard even though not controverted specifically by the plaintiffs-opposite parties in their reply (Annexure-2) has not been examined much less appreciated by the Court below, which has not recorded any finding on the same. In such a situation, it would become clear that the deposition of the 2 witnesses of the plaintiffs were recorded and whose recall was being prayed for by the petitioner (defendant), were actually examined without prior notice to the petitioner and/or his counsel and in fact without supplying their affidavit containing examination-in-chief in complete violation of the mandatory provisions under Order XVIII Rule 4(1) of the Code of Civil Procedure. In that view of the matter, the Court below had no option but to either strike off the evidence of all such witnesses of the plaintiffs or allow the prayer of the petitioner for recall of such witnesses for their cross examination. A mere editorial comment made in the impugned order by the Court below in rejecting a genuine prayer of the petitioner for recall of the witnesses of the plaintiff without dealing with the grounds mentioned in the application of the petitioner as contained in Annexure-1 of this application itself amounts to jurisdictional error and thus, the impugned order cannot be sustained. That being so, this Court would set aside the impugned order and direct the Court below to allow the prayer of the petitioner made in their application dated 4.1.2006. With the aforementioned observations and directions, this application is allowed. Rsh (Mihir Kumar Jha, J.)