Jagdish vs Jitender

Amol Rattan Singh, J.

By this petition, the petitioner has challenged the order of the learned trial court dated 05.12.2017, by which the petitioners' application seeking to recall

the plaintiff and one Sunil (PW-3 and PW-4 respectively) for further cross-examination, stands dismissed.

Notice having been issued in this petition, Mr. Lajpat Sharma, Advocate, appears for the respondent and submits that the trial court did not err while

dismissing the application, holding that simply because the counsel for the petitioner-defendant had changed, that would not give him a right to recall

witnesses, and if such recalling was to be allowed in each trial, it would start happening time and again.

He further submits that there is no provision by which a witness can be recalled.

He also relies upon a judgment of a Division Bench of the Delhi High Court in Rita Solanki v. Jai Solanki [MAT. APP(F.C.) 104/2016, decided on

16.08.2016], wherein an order passed by the trial court dismissing a similar application seeking to recall the petitioners' witnesses (the petitioner was

seeking a divorce) was upheld.

It is seen that in the said case, evidence had been led by both parties and in fact had been closed and the petition was listed for final arguments when

the application was filed for recalling the petitioner and other witness for cross examination, with an application seeking to lead additional evidence

also filed, both of which were dismissed.

Though learned counsel is absolutely correct (as is the trial court) that such a practice adopted by any party is to be highly deprecated, the situation in

the present case is different to the extent that even upon query, learned counsel for the respondent herein had taken instructions that the petitioner has

still not opened his evidence as a defendant, though evidence of the respondent-plaintiff was closed on 16.08.2017, with the application for recalling of

the witness having been filed on 09.10.2017, at the stage when the applicant-defendant (petitioner herein) was to start leading his evidence, (though it

was a third opportunity granted to him to do so).

Though learned counsel for the respondent has also submitted that the respondent-plaintiff would be prejudiced if this petition was to be allowed, I find

myself unable to agree with that contention, other than agreeing that the fact that definitely the trial would get postponed and delay would be suffered

by the plaintiff for no fault of his.

Other than that, with none of the petitioners' witnesses having been examined and obviously no cross-examination of those witnesses having even

come about, any other prejudice is not seen to be occurring. Consequently, even while again holding that the application has been filed at a stage after

cross-examination of the aforesaid two witnesses had already been concluded, with the plaintiffs' evidence therefore closed, the reason as given in the

application being that the Advocate originally engaged to conduct the proceedings on behalf of the defendant had not effectively cross-examined the

plaintiff and PW4, and more importantly, no further evidence at all having been led by the defendant as yet, I consider it appropriate to allow this

petition.

The impugned order is set aside, with the petitioner granted two effective opportunities to cross-examine each of the witnesses aforesaid, i.e. PW-3

and PW-4, subject to the petitioner paying a cost of Rs.10,000/- to the respondent.