Vinod Kumar vs Mangal Sain Grover

Dr. Bharat Bhushan Parsoon, J.—Dismissal of application of tenant Vinod Kumar, petitioner herein (for short, the tenant) for recalling of landlord Mangal Sain Grover, respondent herein (for short, "the Landlord") for his further cross-examination as PW 1, forms genesis of this revision petition. A petition for eviction of the tenant is pending adjudication before the Rent Controller, Ludhiana since 8.9.2007. The landlord has been examined as PW 1 in his evidence. The tenant wants to conduct further cross-examination on the landlord, claiming, that his consultation with his new lawyer has awakened him to the alleged gaps left in the cross-examination of the landlord which may result in rendering his cross-examination ineffective. Citing Om Parkash Vs. Sarupa and Others, , it is claimed by counsel for the tenant that a party should not be allowed to suffer for a lapse on the part of his counsel. Support has also been sought from Muthukaruppan @ Velayutham Vs. Suresh @ Muthukaruppan and two others, and Herbert Irwin Pereira Vs. Rudolph Pereira and Others, .

Citing K.K. Velusamy v. N. Palanisamy, 2011 (2) R.C.R. (Civil) 875 (Supreme Court), it has been urged that the court can always permit fresh evidence if evidence was relevant to render justice. It is urged that though power is discretionary but should be used in appropriate cases where evidence is necessary. Referring to provisions of Order XVIII Rule 17 CPC, it is urged that though this provision is to enable the court to clarity any issue or doubt by recalling any witness yet invocation of this provision can be made even at the request of any party.

Per contra, stand of the landlord is that the application is nothing but a ruse to further delay and dilate the matter and that the application of the tenant was not a bona fide one.

Hearing has been provided to the counsel for the parties while going through the paper book.

Perusal of the paper book reveals that examination-in-chief of the landlord Mangal Sain Grover by way of affidavit was conducted on 2.4.2009. The tenant continued delaying and dilating the matter of completion of his cross-examination on one score or the other till 22.2.2014 taking almost five years for completing the cross-examination. In between the cross-examination was got deferred from 2.4.2009 to 6.12.2010, 8.3.2011, 30.7.2012, 13.8.2012 and to 22.2.2014.

It is further to be noticed that appearance of the landlord for further cross-examination before the Rent Controller had become difficult due to his failing health resulting in completion of his cross-examination at his residence through the Local Commissioner appointed by the Rent Controller. His cross-examination by the tenant then was completed only on 22.2.2014. The only ground taken by the tenant for recall of this witness is that a newly engaged counsel by him has allegedly pointed out some drawbacks in the cross-examination which need to be cured to make the cross-examination effective.

Now the question posing for answer is as to whether recall of a witness merely on the score that the earlier lawyers for the tenant had allegedly left gaps in cross-examination should be allowed to fill in the gaps, if any, or not?

This question is not arising for answer for the first time but has already been answered by this Court in Om Parkash Vs. Vinod Kumar, . It was held in this authority that recall of a witness on the plea that his earlier counsel has not cross-examined him properly, was not a valid ground to recall the witness. To the same effect is Bhag Singh Vs. Madan Lal Walia and Binder Singh Vs. Babu Ram, . In Krishan Baldev v. Dev Singh, 2012 (8) R.C.R. (Civil) 2540 (P & H) going a step further, it was held by this Court that the power in the interest of justice to recall a witness is not intended to be used to fill up omissions left in evidence of a witness who has already been examined. To the same effect is Geeta and Others Vs. Chandgi Ram and Others .

Even in K.K. Velusamy v. N. Palanisamy''s case (supra) cited from the side of the petitioner-tenant himself, it was held by Hon''ble Apex Court that if such application for recall of a witness is found to be for cover up of negligence or lacunae, it should be rejected with heavy costs. It was observed in this authority as under:

"Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions."

It would be relevant to mention at this stage that the tenant had been changing his counsel quite often and even during cross-examination of the landlord, the tenant had changed three counsel one after the other. It is now the fourth one engaged by him on whose advice he wants further cross-examination of the landlord to be effected, which cross-examination as has already been effected and had taken almost five years for the tenant to complete. The application is nothing but a delaying and dilating tactic.

Keeping in view the totality of facts and circumstances, no ground is made out to interfere with the impugned order dated 31.5.2014 (Annexure P-4). Affirming the same, this petition being without any merit and rather being in the nature of misuser of process of the court, is dismissed with costs of Rs. 10,000/- to be paid to the opposite party. As the rent petition is pending since 8.9.2007, the Rent Controller would complete the adjudication of the same within three months from the date of receipt of certified copy of this order, even by taking the case on day to day basis, if so required.