Calcutta High Court (Appellete Side)
Akd Sipra Chatterjee @ Shipra Chaterjee vs Sri Samir Ranjan Mukherjee @ Samir ... on 3 January, 2018
Author: Harish Tandon
Bench: Harish Tandon
1
13 03.01.18 C.O. 4215 of 2017
Ct. No. 2
akd Sipra Chatterjee @ Shipra Chaterjee
Vs.
Sri Samir Ranjan Mukherjee @ Samir Mukherjee.
--------
Mr. Devojyoti Barman, Mr. Amit Dey.
... for the petitioner.
Mr. Prantick Ghosh, Mr. Siddhartha Sarkar.
... for the opposite party.
The petitioner is vehemently opposed by the propounder/opposite party in contending that Order XVIII Rule 17 of the Code of Civil Procedure cannot be used as a tool to fill up the lacunae or gap in the cross-examination of the witness.
It is ardently submitted that the provisions under Order XVIII Rule 17 of the Code cannot be pressed in action at the stage of argument.
The learned advocate advanced his argument on the merit of the case in so much so that the petitioner has miserably failed to put the relevant questions to the first witness and, therefore, recalling of the second witness would not yield any benefit to him.
I had an occasion to peruse the impugned order passed by the Trial Court. The Trial Court rejected the said application on two fold grounds; firstly, that the said application is intended to drag or prolong the litigation and secondly, that there is no question indicated in the application to be put to the said witness during re-cross-examination.
The judgement relied upon by the plaintiff/opposite party so far as it relates to a decision rendered by the Apex Court in case of Vadiraj Naggappa Vernekar vs. Sharadchandra Prabhakar Gogati reported in (2009) 4 SCC 410, wherein it is 2 categorically held that the Court shall not permit the party to recall the witness to fill up the omission in the evidence, as such provision was enacted with an object to enable the Court to clarify any doubts, which it may have with regard to the evidence led by the parties.
In case of M/s. Bagari Construction Thr. vs. M/s. Gupta Building Material Store reported in (2013) 14 SCC 01, the Apex Court was considering the invocation of Section 151 of the Code in relation to the omission of the provisions contained under Order XVIII Rule 17A of the Code. In the said case the party applying for recalling witness wanted to rely upon certain documents through the witness and a point was raised whether the Court can permit the party to re-examine or re-cross-examine the witness to produce the documents after the deletion of the said provision. It has been categorically held that the power of the Court is not abridged or bridled by deleting the provision, as the inherent power enshrined under Section 151 of the Code can be taken recourse to.
It is no longer res integra that the Court must be more cautions and circumspect in permitting the party to re-examine the witness on recall, if it is aimed at filling up the lacunae or the lapses. The aforesaid provision is intended to achieve the main purpose of clarifying the doubts or to put certain questions, which may throw light on the core issue. Equally it is important when a litigant should not be allowed to suffer for the lapses or laches on the part of the advocate.
Since the Court did not apply its mind on the merit as was swayed by the fact that the application is bereft of the questions intended to be put to the 3 second witness of the plaintiff, this Court feels that the dismissal of the said application cannot stand in the way of the petitioner in filing a fresh application disclosing the questions to be put for re-cross- examination.
If such application is filed within two weeks from date, the Court below shall consider the same on merit without being swayed by any observations or findings recorded in the impugned order as well as in this order and endeavour shall be shown to dispose of the same within two weeks from the date of filing such application.
The revisional application is thus disposed of. There will be no order as to costs.
(HARISH TANDON, J.)