Rudreswar Dihingia vs Pundu Mura

S.N. Phukan, J.—This petition u/s 115 read with Section 151 of the CPC is directed against the order, dated 28.11.1987 passed by the Learned Munsiff No. 2, Sibsagar in Title Suit No. 69 of 1984. The present opposite party as plaintiff filed the above suit praying inter alia, a declaration of right, title and interest and recovery of possession in respect of the suit land. Issues were framed and the present petitioner who was impleaded as the defendant was asked to adduce evidence and accordingly witnesses were examined, cross-examined and discharged. On 3.9.1987 the opposite party filed a petition before the Learned trial court praying for recalling DWs. 1 and 2 for further re-cross-examination on the ground that ''some important and relevant questions were left out to be put to DWs during cross-examination''.

The petition was opposed and'' the Learned trial court relying on a decision of the Andhra Pradesh High Court in Sultan Saleh Bin Omer Vs. Vijayachand Sirimal, , allowed the petition and accordingly passed an order for recalling DWs. 1 and 2. Hence the present petition.

Though notice was served on the opposite party, no appearance has been caused before this Court.

The first contention of Mr. Barua, Learned Counsel for the petitioner is that the ratio laid down by the Andhra Pradesh High Court in the aforesaid decision is not relevant for the present purpose. On perusal of the report, it appears that in the aforesaid case the witnesses were not cross-examined at all due to absence of the Learned Counsel and accordingly it was held that under Order XVIII Rule 17 read with Section 151 CPC, the Court can recall witnesses suo moto or at the instance of the parties for the purpose of putting questions before the court or for cross-examination. But in the case in hand, the DWs. 1 and 2 were examined, cross-examined and discharged and it is not a case where the court passed the impugned order under Order XVIII Rule 7 CPC. Therefore, I hold that the ratio laid down in Sultan Saleh Bin Omar (supra) is not relevant for the present purpose.

In the case in hand, main point involved is whether the court can recall a witness after the said witness was examined, cross-examined and discharged for the purpose of re-examination. Mr. Barua, Learned Counsel for the petitioner has taken the extreme stand that once a witness is discharged he cannot be recalled, I am unable to accept the contention.

In my opinion, the court can be exercising inherent powers u/s 151 C.P.C. can recall a witness at any stage for the purpose of re-cross-examination or re-examination. But before passing an order for recalling a witness the court must be satisfied and accordingly record reasons that it is necessary to do so for ends of justice or to prevent abuse of process of the court. It is difficult to lay down under what circumstances such powers can be exercised as it will vary from case to case, but in my opinion, the said powers may be exercised in rare cases and after recording sufficient and cogent reasons. For example, if after a witness is discharged after cross-examination new facts come to light, the witness may be recalled for re-cross-examination. This matter, in my opinion, entirely rests at the discretion of the court.

In the instant case, I do not find either in the petition filed by the opposite party, or in the impugned order reasons for recalling the witnesses, namely DWs. 1 and 2 for the purposes of re-cross-examination. It appears that only ground on which the Learned trial court heavily relied was that the petitioner would not be prejudiced if the witnesses were recalled and, in my opinion; the reasons is, not sufficient. The impugned order is, therefore, bad in law. I, however, make it clear that keeping in view the observations made herein above the trial court will be at liberty to exercise inherent powers to recall the witnesses if any occasion arises in future.

From what has been stated above I hold that the Learned trial court exercised its jurisdiction in passing the impugned order with material irregularity, and as such, it is liable to be set aside, which I hereby do.

In the result, the petition is allowed and the Rule is made absolute. No costs.