Pantham Brahmam vs Gollipalli Swaminaidu

Motilal B. Naik, J.—Order passed on an application filed under Order 18 Rule 17 of the CPC in I.A.No. 929 of 1994 in O.S.No. 279 of 1987 on the file of the District Munsif, Srungavarapukota, dt. 28-12-94 for recalling P.W.2 is the subject matter of challenge in this C.R.P.

Counsel for the petitioner states that on an application filed by the respondent under Order 18 Rule 17 of C.P.C to recall P.W.2 for further cross-examination, the lower Court erroneously allowed the application though resisted by the petitioner herein. It is stated, the provisions contemplated under Order 18 Rule 17 of C.P.C only invests powers in the Court to suo motu recall the witness for questioning and it is not open to the parties to file an application seeking recalling of a witness for further cross-examination.

In view of this submission, it is to be examined whether the provisions contemplated under Order 18 Rule 17 of CPC are to be construed to say that it is only the Court which is competent to recall the witness suo motu and not otherwise. Order 18 Rule 17 of CPC reads as under :

"Court may recall and examine witness: The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit."

It is to be seen, Courts are entitled to recall a witness who has already been examined, at any stage of the suit, for putting certain questions under the above provision. The words used in this provision are to be necessarily construed to say the power can be exercised by the Court suo motu as also at the instance of either party. The legislature never intended to say the Courts alone are to exercise suo motu powers to recall a witness at any stage of the proceedings. No doubt, this is a suo motu power vested in the Courts under the CPC for exercising such power in an appropriate situation, however, this power has to be construed to say that the Court on its own or at the instance of either party permit recalling of a witness in a given set of circumstances. It all depends upon the set of circumstances and the Court shall prima facie satisfy as to the ordering of recalling of a witness who has already been examined. If once the Court is satisfied, it is open to the Court to act upon such an application also when filed before it seeking recalling of a witness by either party.

In view of the above discussion, I do not think that the submission made in this behalf could be accepted. Accordingly, I hold that the lower Court''s order under challenge does not suffer from any material irregularity for interference by this Court u/s 115 of C.P.C.

In the result, this C.R.P. is dismissed.