Case Note & Summary
The petitioner, defendant no. 2 in Regular Civil Suit No. 66 of 2009, challenged the order of the Joint Civil Judge, Junior Division, Kadegaon, rejecting his application under Order 18 Rule 17 of the Code of Civil Procedure, 1908 (CPC) for recalling the plaintiff's witness for cross-examination. The suit was filed by the respondents (plaintiffs) seeking declaration of title and alternative redemption of mortgage over suit property. The defendants claimed ownership through mortgage by conditional sale deeds dated 22.01.1955 and 01.01.1955, which were allegedly lost in a robbery in 1965. The trial court framed issues on 09.01.2015, and parties led evidence. On 04.12.2015, defendant no. 2 filed an application under Order 18 Rule 17 CPC to recall the plaintiff's witness for cross-examination on newly discovered documents, which the trial court rejected. The High Court held that the trial court's order was erroneous as it failed to consider the court's power to recall a witness for just decision. The court allowed the petition, set aside the impugned order, and directed the trial court to permit recall of the witness for cross-examination on the newly discovered documents, with costs of Rs. 5,000 to be paid to the plaintiffs.
Headnote
A) Civil Procedure - Recall of Witness - Order 18 Rule 17 CPC - Power of Court - The court has inherent power to recall a witness for cross-examination if necessary for just decision, especially when new documents are discovered after the witness's examination. The trial court's rejection of the application was set aside as it failed to consider the need for fair opportunity. (Paras 1-10) B) Evidence - Cross-Examination - New Documents - Right to Fair Trial - A party must be given an opportunity to cross-examine a witness on documents that were not available at the time of initial examination, to ensure justice and prevent prejudice. (Paras 5-10)
Issue of Consideration
Whether the trial court erred in rejecting the defendant's application under Order 18 Rule 17 CPC for recalling a witness for cross-examination on newly discovered documents.
Final Decision
Writ petition allowed. Impugned order dated 04.12.2015 set aside. Trial court directed to permit recall of plaintiff's witness for cross-examination on newly discovered documents, subject to payment of costs of Rs. 5,000 to the plaintiffs.
Law Points
- Order 18 Rule 17 CPC
- recall of witness
- cross-examination
- newly discovered documents
- procedural fairness
- power of court to recall witness
