Hasankhan Alamkhan Died Through Heir Yusufkhan Hasankhan vs Abdulla Ahmedali Chhatriwala and 1

Honourable Ms. Justice S.G. Gokani

This writ petition is preferred under Article 227 of the Constitution of India, whereby challenge is made to the Order dated 7th February 2012 passed below Application Exh. 174 in HRP Suit No. 488 of 2005 by the learned Judge, Small Cause Court, Ahmedabad, in the following factual background. An HRP suit is preferred by the respondent no. 1-original plaintiff seeking eviction of the suit premises on the ground of personal requirement and alleged sub-letting of the suit premises. Evidence of the present petitioner [defendant no. 1] was completed on 11th February 2011 and thereafter advocate for the plaintiff also had sufficient opportunity to cross examine the petitioner and his witnesses. The original plaintiff [respondent no. 1 herein] gave an application Exh. 174 under Order 18 Rule 17 CPC inter alia urging for witness summons on the ground that the some of the documents which have been produced in the deposition of petitioner herein have been exhibited vide Exh. 139 to 168 and these documents were produced after evidence was completed, there was necessity for recalling the witnesses.

It is urged by learned advocate for the petitioner that the order passed by the learned Judge, Small Cause Court dated 7th February 2012 allowing such application is a jurisdictional error. He relied upon decision of the Apex Court reported in Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, to contend that witnesses cannot be recalled for filling up lacuna in evidence discovered on cross examination, as this provision is not intended for filling up omissions in the evidence. Learned advocate also urged that interest of petitioner, as a defendant [tenant], could be materially prejudiced if this order is allowed.

On thus hearing learned advocate and on perusal of the record, this petition deserves no consideration on merit in as much as the learned Judge, Small Cause Court vide Order dated 7th February 2012 has sufficiently dealt with the issues in question. The Court below appears to be cautious of the discretion to be exercised under Order 18 Rule 17 CPC cannot be used in capricious or arbitrary manner. It also has relied upon decision of Apex Court in case of Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate, . The Court noted that witness of the defendant known as "Aminbhai" had produced some of the documents under Exh. 28 and these documents were in the name of "R.K. Traders" and the request is made to recall him for the purpose of asking certain questions on the documents which are in the name of "R.K. Traders". The Court below found this request justifiable. It is of course prerogative of the Court to recall any witness who has been examined earlier and put him such question/s; as may be deemed fit. This is not permissible for the party to fill-up lacuna. It is an enabling provision for the convenience of the Court to adjudicate the disputes between the parties. In the instant case, the Court has exercised its discretion on having found necessity to re-examine the witnesses by recalling him for getting the document clarified, which is produced by such witness at much belated stage. This being the discretion of the Court and when it has chosen to exercise it, the same cannot be termed as filling-up lacuna by the original plaintiff. Accordingly, this petition fails and the same is dismissed with no order as to costs.