Shera vs Asha Ram

S.P. Goyal, J.—This petition has been filed to challenge the order of the trial Court declining the prayers under Order 18 Rule 17 and 17-A of the CPC for recalling D.W. Brahma and the production of a document expert by way of additional evidence. So far as the permission to lead additional evidence is concerned, the impugned order suffers from no irregularity or illegality in the exercise of its jurisdiction by the trial Court. However, in declining the prayer for recalling D.W. 2, the trial Court acted illegally inasmuch as the rule laid down by this Court in Om Parkash Vs. Sarupa and Others, was not noticed and reliance was placed on other decisions which had no bearing. In Om Parkash''s case (supra) the counsel had inadvertently failed to put some question to the witness regarding the attestation of the will. The order of the trial Court refusing the prayer to recall the witness was reversed by Gupta, J. observing that a party could not be allowed to suffer for any omission or lapse on the part of his counsel and that the rules of procedure are meant to advance he cause of justice and not to thwart it. The said observations being fully applicable to the present case, and respectfully following the same, this petition is partly allowed and the order of the trial Court refusing to recall the witness reversed. The Petitioner shall be entitled to recall the witness only subject to payment of Rs. 300/- as costs.