Tirathram And Ors vs Amardas And Ors

Sanjay K. Agrawal, J

By the impugned order dated 05/03/2019 passed in Civil Suit No. 06-A/2017, petitioners'/defendants' application under Order 18 Rule 17 of the Code of Civil Procedure (henceforth "CPC") has been rejected by the trial Court against which this writ petition has been preferred by them.

Learned counsel for the petitioners submits that the plaintiff/respondent No. 1, himself and two witnesses could not be examined effectively by the earlier counsel engaged by the defendants/petitioners. Therefore, their recall is necessary and thus, the trial Court has committed illegality in rejecting defendants'/petitioners' application under Order 18 Rule 17 of CPC.

I have heard learned counsel for the petitioners, considered his submissions and went through the records with utmost circumspection.

The plaintiff/respondent No. 1 and two witnesses were examined and cross-examined and discharged on 12/12/2018 and thereafter, the case was fixed for defendants' evidence on 04/01/2019, it was further adjourned for 18/01/2019 and then, on 05/02/2019 another counsel filed Vakalatnama on behalf of the defendants and he filed the application for recall of the witnesses on the ground that the witnesses could not be examined effectively earlier.

Order 18 Rule 17 cannot be invoked at the instance of the parties to the suit unless it appears to the Court that the re-examination is necessary to secure the ends of justice. The trial Court has clearly recorded the finding that re-examination is not necessary for just and proper disposal of the suit. I do not find any illegality or perversity in the impugned order warranting interference under Article 227 of the Constitution of India.

As such, this writ petition deserves to be and is accordingly dismissed.

A copy of this order be sent to the concerned trial Court by e-mail/fax. No cost(s).