Case Note & Summary
The petitioners, who are the plaintiffs in O.S.No.4067/2009 pending before the XV Additional City Civil and Sessions Judge, Bengaluru, filed a writ petition under Article 227 of the Constitution of India challenging the order dated 05.02.2021 passed on I.A.No.1/2021. The trial court had dismissed the application filed under Order 18 Rule 17 of the Code of Civil Procedure, 1908 (CPC) seeking recall of PW-1 for further cross-examination. The petitioners contended that they were not given sufficient opportunity to cross-examine PW-1 and that the trial court's order was arbitrary and violative of principles of natural justice. The respondents, who are the legal representatives of the original defendant, opposed the petition arguing that the application was filed belatedly and that the petitioners had already cross-examined the witness. The High Court, after hearing the petitioners (party-in-person) and noting the absence of the respondents' counsel, examined the impugned order. The court found that the trial court had not considered the fact that the petitioners were not afforded a fair opportunity to cross-examine PW-1 and that the dismissal of the application was unjust. The High Court set aside the impugned order and allowed I.A.No.1/2021, subject to payment of costs of Rs.5,000 to the respondents, to be paid within two weeks. The trial court was directed to recall PW-1 for further cross-examination on a date to be fixed, and the petitioners were directed to complete the cross-examination on the same day without seeking adjournment.
Headnote
A) Civil Procedure - Recall of Witnesses - Order 18 Rule 17 CPC - Natural Justice - The trial court dismissed the application for recall of PW-1 for further cross-examination on the ground that the petitioners had already cross-examined the witness and the application was filed belatedly. The High Court held that the trial court failed to consider that the petitioners were not given adequate opportunity to cross-examine the witness and that the dismissal was contrary to principles of natural justice. The impugned order was set aside and the application was allowed subject to payment of costs. (Paras 1-10) B) Civil Procedure - Cross-examination - Fair Opportunity - The court observed that the right to cross-examine is a valuable right and cannot be denied without sufficient cause. The trial court's order was found to be arbitrary and was quashed. (Paras 5-8)
Issue of Consideration
Whether the trial court was justified in dismissing the application filed under Order 18 Rule 17 of the Code of Civil Procedure, 1908, seeking recall of PW-1 for further cross-examination, without affording the petitioners an opportunity to complete their cross-examination.
Final Decision
The writ petition is allowed. The impugned order dated 05.02.2021 passed on I.A.No.1/2021 in O.S.No.4067/2009 is set aside. I.A.No.1/2021 is allowed subject to payment of costs of Rs.5,000 to the respondents, to be paid within two weeks. The trial court is directed to recall PW-1 for further cross-examination on a date to be fixed, and the petitioners shall complete the cross-examination on the same day without seeking adjournment.
Law Points
- Recall of witnesses
- Order 18 Rule 17 CPC
- Natural justice
- Fair opportunity
- Cross-examination
- Abuse of process of law
