Lalit Khullar vs Shish Pal

Mahesh Grover, J.—This revision petition is directed against order dated 9.2.2010 vide which prayer of the petitioner to recall respondent''s witness for cross-examination was declined. This witness was earlier examined and the opportunity was allegedly given to the petitioner who did not cross-examine him.

Contention of the learned Counsel for the petitioner is that at the time when the said witness was to be cross-examined, the arguing counsel in that case was not available and therefore due to oversight this opportunity has been wasted.

Prayer of the petitioner has been seriously opposed by the learned Counsel for the respondents on the ground that petitioner''s case does not fall within the ambit of Order 8 Rule 17 CPC.

I have heard learned Counsel for the parties and have perused the impugned order.

Order 8 Rule 17 CPC empowers the Court to recall any witness for further examination in the event of its being satisfied that the same is necessary and also relevant. The petitioner who pleads that the counsel was not available and due to oversight the opportunity to cross-examine has been wasted cannot be prejudiced when such a plea does not seem to be improbable.

Keeping in view the interest of justice and also the fact that the Court under Order 8 Rule 17 CPC is fully empowered to recall any witness for cross-examination and also keeping in view the fact that no malafide has been shown on the part of the petitioner except for negligence, I deem it appropriate to accept the present petition with a direction to the Trial Court that only one opportunity shall be granted to the petitioner to cross-examine the said witness Rajesh Gupta. The Trial Court shall fix a date for the occasion by giving effective intimation to both the parties.