CRP 145/2010 BEFORE THE HON’BLE MR. JUSTICE A.K. GOSWAMI JUDGMENT AND ORDER(ORAL) 1. This application under Article 227 of the Constitution of India is direc ted against the order dated 2.3.2010 passed by the learned Civil Judge, Sivasaga r, in Title Suit No.71 of 2005 rejecting the petition filed by the plaintiffs fo r calling for certain records and recalling the defendant No.1 for the purpose o f further cross-examination. 2. I have heard Mr. R.L. Yadav, learned counsel appearing for the petitione rs as well as Mr. G.N. Sahewalla, learned senior counsel appearing for the respo ndent. 3. The basic facts may be outlined at this stage. The petitioners/plaintiff s filed the suit being Title Suit No.71/05 in the Court of the Civil Judge at Si vasagar, praying for a decree of declaration, permanent injunction, eviction/kha s possession and other consequential reliefs in respect of 12 Lessas of land of Dag No.3002 of P.P. No.1987 out of 2 Katha 10 Lessas of land of Dag Nos.3000 and 3002 of Periodic Patta No.1987 under Nagar Mahal Mouza of Ward No.13 of Sivasag ar Town. 4. Defendant appeared in the suit and filed his written statement on 10.2.2 006. After framing of issues, plaintiffs examined one witness to support his cas e and the defendant had adduced the evidence of two witnesses in the form of DW- 1 and DW-2. The cross examination of DW-1 was completed on 5.7.2008. While the c ase was fixed for argument, the plaintiffs came to learn that the defendant had already filed a Title Suit being Title Suit No.124/07 (earlier registered as T.S . No.65/04) in the Court of Munsiff No.1, Sivasagar on the same subject matter w ith the difference that in the said suit, the vendor of the plaintiffs of Title Suit No.71/05 was arrayed as defendant and the plaintiffs of Title Suit No.71/05 were not parties in the said proceeding. 5. The plaintiffs filed a petition under Section 10 of the CPC on 19.3.2009 for stay of their own suit being Title Suit No.71/05 in view of the pendency of Title Suit No.65/04, which was re-numbered as Title Suit No.124/07. It would ap pear that on receipt of the said application under Section 10 CPC, the plaintiff s of Title Suit No.124/07 filed a petition on that very date for withdrawal of t heir suit being Title Suit No.124/07. In fact, on that very date, that is to say , on 19.3.2009 itself, the learned Munsiff passed order permitting the plaintiff s to withdraw the suit in question. The factum of withdrawal of the aforesaid su it was brought to the notice of the trial Court by the defendant of Title Suit N o.71/05 by a petition dated 22.4.09 with a prayer that the petition dated 19.3.0 9 had become infructuous in view of the subsequent development. The case was pos ted for hearing of the aforesaid petition on 18.5.09 and on that date, the plain tiffs of Title Suit No.71/05 filed a petition numbered as 735/09 for calling for the records of Title Suit No.124/07 for the purpose of bringing on record the c opy of the plaint, by way of further cross-examination of DW-1. According to the petitioners, there is discrepancy in the stand of the defendant in the written statement and the stand taken by the defendant in the plaint of T.S. No.124/07. The defendant submitted objection to the said petition No.735/09 contending that re cross-examination is not permissible in law and therefore, the question of c alling for the records does not arise at all. A petition being Petition No.1073/ 09 came to be filed on 14.7.2009 at the instance of the plaintiffs where they ha d formulated the question that the plaintiffs were going to ask on the recalling of the DW-1 for further cross-examination. The question framed was to the follo wing effect- Whether you stated in the plaint of T.S. No.65/04 (T.S. No.124/07) that the suit land is under the exclusive possession of the plaintiff including his father since 1960 . The plaintiffs also contended that the plea of unsustai nability of further cross-examination of the defendant No.1 is not tenable in la w. 6. The learned trial Court on consideration of the materials on record and after hearing the parties by reason of the impugned order dated 2.3.2010 rejecte d the petition No.735/09 which was filed on 18.5.09 and fixed the case on 20.3.2 010 for argument. The learned trial Court, while taking the view, was guided by the provisions of Order 18 Rule 17 of the CPC in that the aforesaid provisions d o not empower the Court to call for the witness, who has been examined and cross -examined, for the purpose of further cross-examination. The learned trial Court had also relied on a decision in the case of Jhanwarlal Patwa Vs. Uday Narain G oswami & Anr. reported in 2006 (3) GLT 458, wherein it has been held that a par ty cannot be permitted to fall back upon Section 151 CPC to re-cross examine a w itness who had been already examined and cross examined. The learned trial Court also had taken note of the fact that while the evidence of DW-1 was closed long back in 2008, the plaintiffs had filed the petition No.735/09 only on 18.5.2009 , while the case was fixed for argument. Having held that it is impermissible fo r recalling a witness for re-cross-examination, the learned trial Court consider ed it redundant to call for the records, as prayed for. 7. Mr. R.L. Yadav, learned counsel for the petitioners, has basically tried to reiterate the contentions advanced in the petition dated 18.5.2009. Accordin g to him, it is necessary for the ends of justice to call for the records of T.S . No.124/07. He also submitted that the defendant had not made any whisper in th e written statement filed regarding the pendency of the T.S. No.124/07. Deprecat ing the conduct of the defendant in T.S. No.71/05, the learned counsel submits t hat no sooner had the plaintiffs prayed for stay of the proceeding in T.S. No.71 /05, the defendant had acted with alacrity to withdraw T.S. No.124/07. According ly, the suit came to be withdrawn on that very date. He submits that the plainti ffs were not aware of the pendency of T.S. No.124/07 and it is much after closur e of the evidence that fact came to light. Therefore, according to him, there is no delay in approaching the court. He also strenuously argued that defendant ha d taken a stand in the T.S. No.124/07 contrary to the one which he had taken in the written statement of T.S. No.71/05. This, according to him, is very material for the purpose of deciding this case. Therefore, the plaintiffs cannot be deni ed to bring on record the plaint filed in T.S. No.124/07 for proper adjudication of the case. He has placed reliance on judgment reported in AIR 2009 SC 2355 (S arva Shramik Sangh Vs. Indian Oil Corporation Ltd. & Others) to submit that the technicalities cannot come in the way to deny justice or to perpetuate injustice and that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or cause injustice. He has also submitted o n the basis of the aforesaid judgment that if a document is essential for provin g the case of a party by bringing on record such document, ordinarily same shoul d not be refused as primary duty of the court is to find out the truth. In this perspective, the learned counsel wants this Court to interfere with the order im pugned in this petition so that the plaintiffs are able to bring on record the p laint of T.S. No.124/07. 8. Mr. G.N. Sahewalla, learned senior counsel for the respondent, however, contends that the petition filed by the plaintiffs is wholly misconceived inasmu ch as there is no power invested in a court of law to recall any witness for the purpose of further cross-examination, which was the prayer made by the plaintif fs. According to him, in view of such a prayer made for recalling of DW-1 for th e purpose of re-cross examination, the same being clearly not permissible in law as has been held in Jhanwarlal Patwa(Supra), there was no jurisdictional error committed by the learned trial Court and therefore, the revision petition is lia ble to be dismissed. 9. I have perused the materials on record and have carefully considered the rival contention of the parties. 10. There is no dispute that the plaintiffs had filed the certified copy of the plaint of T.S. No.124/07 alongwith the petition filed on 18.5.2007. The plai ntiffs wanted to bring on record the copy of the plaint in original by recalling the DW-1 for further cross-examination. Order 18 Rule 17 of the CPC does not vi sualize a situation where a witness can be recalled for the purpose of re-cross- examination or further cross-examination. This Court has also affirmed the said legal proposition in the case of Jhanwarlal Patwa(Supra). In the backdrop of the aforesaid factual matrix, the considered opinion of this Court is that the lear ned trial Court did not commit any material irregularity and/or error of jurisdi ction requiring interference of this Court with the order dated 2.3.2010 in exer cise of power under Article 227 of the Constitution of India. 11. In the result, the revision petition, being devoid of merit, is dismisse d. However, notwithstanding the dismissal of this petition, the plaintiffs would have the liberty to file any other petition, if otherwise permissible in law, t o bring on record of T.S. No.71/05, the plaint of the T.S. No.124 of 2007, in ac cordance with law. In the event of filing of any such petition by the plaintiffs , the learned trial Court shall dispose of such application in accordance with l aw. 12. No costs.