IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2379 of 2007 KIRAN SINHA Versus VINAY KUMAR SINHA & ORS ----------- 2. 15.9.2008 Heard counsel for the parties. Both equity and law would demand the defendant petitioner to compensate the loss of the plaintiff opposite party when an attempt is now being made to recall the witnesses who were examined after service of summons on the petitioner. It is not in doubt that the petitioner was added as a party in the suit at the behest of the plaintiff opposite party and summons were issued on 27.8.2005 which were shown to have been refused in the order of the court below dated 2.9.2005. That being so, if the defendant petitioner chose to appear on 12.7.2006 and filed his written statement on 29.9.2006 ordinarily he will have a liberty also of recalling of the witnesses who were examined after service of summons on them. That being the position, Mr. Dinu Kumar, counsel for the petitioner, would submit that for safeguarding the interest of the petitioner he is also ready to 2 compensate the loss of the plaintiff opposite party. Mr. Sri Nandan Prasad Singh, learned counsel appearing on behalf of the plaintiff opposite party, would submit that recalling the witnesses who were examined in the month of March, 2006 after service of summons should not be allowed even on payment of cost because it would virtually amount to reopening of the whole course because of some embarrassing question put to them which may require in turn to lead further evidence in the plaintiff opposite party. After hearing both the parties, this Court is of the opinion that one opportunity has to be given to the petitioner who has been added as a party to the suit at the behest of the plaintiff opposite party. That being so, the only question would arise that if the petitioner had not chosen to appear immediately after summons in a pending case where the evidence is likely to be recorded he at this stage would not be allowed to reopen the whole chapter without compensating the loss of the 3 plaintiff opposite party. Taking all the circumstances and the delay that has been caused by the petitioner, this Court would allow this application by setting aside the impugned order on payment of cost of Rs. 2500/- to be paid by the petitioner to the plaintiff opposite party within a period of one month from the date of receipt/ production of a copy of this order. On furnishing evidence of proof of such payment of cost the court below will allow recall of plaintiff witness nos. 1 to 6 who must be cross-examined by the petitioner on the day of their being produced. No further indulgence will be given in this regard by the court below. (Mihir Kumar Jha,J.) Surendra/