Case Note & Summary
The petitioner, Sri Venkappa Gowda, represented by his GPA holder, filed a writ petition under Article 227 of the Constitution of India challenging the order dated 08.12.2021 passed by the Additional Civil Judge and JMFC at Belthangady, Dakshina Kannada, in O.S.No.20/2012. The impugned order dismissed I.A.No.XIII filed by the petitioner under Order XVI Rule 1(3) and Section 151 of the Code of Civil Procedure, 1908 (CPC), seeking to recall PW1 (the petitioner himself) for cross-examination. The petitioner is the plaintiff in the suit, and the respondents are the defendants. The suit is for declaration and injunction. The petitioner's case is that after PW1 was examined-in-chief on 28.09.2021, the petitioner's counsel was unwell and could not effectively cross-examine the witness. The petitioner filed I.A.No.XIII on 28.09.2021 to recall PW1 for cross-examination. The Trial Court dismissed the application on the ground that the petitioner had earlier given up the witness. The High Court, after hearing the parties, held that the power to recall a witness under Order XVI Rule 1(3) CPC is discretionary and should be exercised liberally to secure the ends of justice. The court found that the petitioner had shown sufficient cause for the recall, as the counsel was unwell and the witness was not cross-examined properly. The court also noted that the respondents had not demonstrated any prejudice that would be caused by allowing the recall. The High Court set aside the impugned order and allowed I.A.No.XIII, directing the Trial Court to recall PW1 for cross-examination on a date to be fixed, and to dispose of the suit expeditiously.
Headnote
A) Civil Procedure - Recall of Witness - Order XVI Rule 1(3) and Section 151 CPC - Sufficient Cause - The petitioner sought to recall PW1 for cross-examination after the witness was examined-in-chief but before cross-examination was completed. The Trial Court dismissed the application on the ground that the petitioner had earlier given up the witness. The High Court held that the power to recall a witness is discretionary and should be exercised liberally to secure the ends of justice, especially when no prejudice is caused to the other side. The court found sufficient cause as the petitioner's counsel was unwell and the witness was not cross-examined properly. (Paras 1-10) B) Civil Procedure - Recall of Witness - Order XVI Rule 1(3) and Section 151 CPC - Prejudice - The High Court noted that the respondents had not demonstrated any prejudice that would be caused by allowing the recall. The court emphasized that the purpose of cross-examination is to elicit truth and that denial of an opportunity to cross-examine would be a denial of natural justice. (Paras 8-10) C) Constitutional Law - Writ Jurisdiction - Article 227 of the Constitution of India - Interference with Interlocutory Orders - The High Court held that the Trial Court's order was erroneous and suffered from material irregularity, warranting interference under Article 227. The court set aside the impugned order and allowed the application for recall of PW1. (Paras 11-12)
Issue of Consideration
Whether the Trial Court erred in dismissing the petitioner's application under Order XVI Rule 1(3) and Section 151 CPC to recall PW1 for cross-examination, and whether the impugned order warrants interference under Article 227 of the Constitution of India.
Final Decision
The High Court allowed the writ petition, set aside the order dated 08.12.2021 passed by the Trial Court, and allowed I.A.No.XIII filed under Order XVI Rule 1(3) and Section 151 CPC. The Trial Court was directed to recall PW1 for cross-examination on a date to be fixed and to dispose of the suit expeditiously.
Law Points
- Recall of witness
- Cross-examination
- Order XVI Rule 1(3) CPC
- Section 151 CPC
- Sufficient cause
- Prejudice
- Power of court to recall witnesses
