Devendra Kumar Jain vs Manoharlal Jain

Viney Mittal, J.

With the consent of learned counsel appearing for parties arguments heard in the main case and is being disposed of finally.

Defendant is the petitioner before this Court. He is aggrieved against the order dated January 31st, 2007 passed by the trial Judge whereby in exercise of the powers under Order 18, Rule 17 of the Code of Civil Procedure, the plaintiff has been permitted to be recalled as a witness.

The primary grievances raised by the petitioner are that neither the provisions of Order 18, Rule 17 of the Code permitted the Court to allow an application filed by the plaintiff to recall any witness nor the plaintiff under the garb of said provisions could lead any further evidence. Secondly it has been argued by the learned counsel for petitioner that the arguments had already been concluded in the proceedings before the trial Court and the case had been fixed for pronouncement of the judgment. Learned counsel maintains that since the proceedings in the suit had been concluded and having reached the stage of judgment, it had reached a stage which was not within the domain of parties, therefore, plaintiff had no right to file application at that stage.

After hearing learned counsel for parties and taking into consideration the facts and circumstances of the case, I am satisfied that both the grievances made by the defendant petitioner are justified.

Under the provisions of Order 18 Rule 17 it is apparent that it is only the requirement of Court which permits the Court to recall a witness, who has already appeared and it is the Court alone, which can put such questions to the recalled witnesses, as may be necessary. The aforesaid provision does not entitle any of the parties to seek any permission to recall the witness and put any further questions. On that basis and on interpretation of provisions of Rule 17 of Order 18 it is apparent that the impugned order Annexure P/l passed by the trial Judge cannot be sustained.

Even on the second contention raised by the learned counsel, the order Annexure P/1 is liable to be set aside. It is not in dispute that proceedings in the suit had reached the stage when the trial Court had already heard the arguments in the case and fixed the case for pronouncement of judgment. At that stage the case had reached outside the domain and control of parties. Under such circumstances none of the parties had right to file any application at the stage when the case was fixed for pronouncement of the judgment.

Consequently I accept both the contentions raised by the learned counsel for petitioner and allow the present petition. As a result thereof the order dated January 31st, 2007 Annexure P/1 is quashed. The learned trial Judge is directed to decide the suit in accordance with law.

C.C. as per rules.