Civil Revision No.6180 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6180 of 2011 (O&M) Date of Decision: October 5th, 2011 Sukhdarshan Singh .... Petitioner Versus Nirmal Singh .... Respondent CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. G.S.Jagpal, Advocate, for the petitioner. VIJENDER SINGH MALIK, J. This is a revision petition brought by Sukhdarshan Singh under the provisions of Article 227 of the Constitution of India for setting aside the order dated 17.4.2010 passed by Additional Civil Judge (Senior Division), Ludhiana, whereby cross examination of Gurpreet Singh and Nirmal Singh, applicant's witnesses, was treated as nil as also the order dated 5.9.2011, whereby the application filed by him for recalling the said witnesses for cross examination had been dismissed. In the application under Order 39 Rule 2A CPC for punishing Sukhdarshan Singh for violating the order of the court, Gurpreet Singh and Nirmal Singh were present as applicant's witnesses for being cross examined on behalf of Sukhdarshan Civil Revision No.6180 of 2011 2 .. Singh. Nirmal Singh is the applicant himself and Gupreet Singh is his witness. Their examination in chief had been recorded and they were to be cross-examined on 17.4.2010. On the said date, noticing the facts that they were present for cross examination and that they were not being cross examined and no cogent explanation has been given for not cross examining the two witnesses, learned Additional Civil Judge (Senior Division), Ludhiana treated their cross examination as nil. The case was adjourned to 13.5.2010 for further evidence of the applicant – Nirmal Singh. Sukhdarshan Singh then applied for recalling of Gurpreet Singh and Nirmal Singh for cross examination. The said application was opposed by the applicant - Nirmal singh and vide order dated 5.9.2011, the application has been dismissed. Aggrieved by the aforesaid orders, Sukhdarshan Singh has brought this revision petition challenging these orders. I have heard Shri G.S.Jagpal, learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner has submitted that on 17.4.2010, for the failure of the petitioner to cross examine Gurpreet Singh and Nirmal Singh, their cross examination was treated as nil. The case was thereafter adjourned for remaining evidence of the applicant for 13.5.2010. He has submitted that if Gurpreet Singh and Nirmal Singh would go uncross examined, their testimony in examination in chief would be deemed to be admitted Civil Revision No.6180 of 2011 3 .. and there would be no use for the petitioner to further contest the application filed under the provisions of Order 39 Rule 2A CPC. Learned counsel for the petitioner has submitted that the order passed by the trial court is, therefore, not correct. According to him, there was no reason for the counsel for the respondent not to cross examine the witnesses. According to him, the witnesses had not appeared in the court and this order has been wrongly passed. He has further submitted that when application was filed for recalling of these witnesses, the same has been dismissed on non-existent grounds. According to him, learned trial court has dismissed the application for the reason that there is no provision for recalling the order and that the application has been filed just to delay the proceedings. The application was not filed for recalling of the order but of the witnesses who had been tendered for cross examination and were not cross examined and their cross examination was treated as nil. The witnesses already examined could be recalled under the provisions of Order 18 Rule 17 CPC but the scope of that provision is limited as has been laid down by Hon`ble the Supreme Court in K.K.Velusamy Vs. N.Palanisamy 2011(2) RCR (Civil) 875. The power under Order 18 Rule 17 CPC is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. Therefore, the witnesses in question could not be recalled under this provision. However, they could be recalled by Civil Revision No.6180 of 2011 4 .. the court to advance the cause of justice under the provisions of section 151 CPC, the scope of the power under which has been clearly laid down in the above cited case. It would require no reason on my part to say that the application for recalling of Gurpreet Singh and Nirmal Singh was not filed with a view to delay the proceedings as has been the view of learned trial court. The recall of witnesses was required because a valuable right is there with a party to cross examine the witnesses tendered for the purpose by the other party. That right cannot be lightly taken away. If the court considered the other party to be playing tricks or trying to delay the proceedings, still that right could not be taken away and opportunity should have been granted on payment of punitive costs. In these circumstances, I find the two orders to be illegal. The revision petition is, consequently, accepted and the orders in question are set aside directing learned trial court to give one more opportunity to the petitioner to cross examine Gurpreet Singh and Nirmal Singh subject to payment of Rs.5,000/- as costs, for which the other party may be directed to produce the aforesaid two witnesses for cross-examination. (VIJENDER SINGH MALIK) JUDGE October 5th, 2011 som