Case Note & Summary
The petitioner, defendant no.1 in O.S.No.8000/2012, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging two orders passed by the XVIII Additional City Civil and Sessions Judge, Bengaluru. The first order dated 01.09.2022 rejected the petitioner's application under Order XVIII Rule 17 CPC to recall him for cross-examination on an additional affidavit filed by the respondent/plaintiff. The second order dated 02.01.2023 imposed costs on the petitioner for filing the recall application. The respondent had filed the suit seeking declaration, possession, and injunction. The petitioner filed a written statement claiming that the original owners had executed an agreement for sale in his favour in 1987 after receiving full consideration. During the trial, the plaintiff filed an additional affidavit, but the defendant was not given an opportunity to cross-examine him on that affidavit. The petitioner sought recall of the plaintiff for cross-examination on the additional affidavit, which was rejected by the trial court. The High Court held that the trial court's orders were erroneous as the plaintiff had filed an additional affidavit without affording the defendant an opportunity to cross-examine him. The court set aside both orders and directed the trial court to recall the plaintiff for cross-examination on the additional affidavit, subject to payment of costs of Rs.5,000 to the plaintiff.
Headnote
A) Civil Procedure - Recall of Witness - Order XVIII Rule 17 CPC - The trial court's rejection of defendant no.1's application to recall him for cross-examination on the additional affidavit filed by the plaintiff was held to be erroneous as the plaintiff had filed an additional affidavit without affording an opportunity to the defendant to cross-examine him on the same. The court directed the trial court to recall defendant no.1 for cross-examination on the additional affidavit. (Paras 1-5) B) Civil Procedure - Imposition of Costs - Order XVIII Rule 17 CPC - The order dated 02.01.2023 imposing costs on the defendant for filing the recall application was set aside as the application was not frivolous and the defendant had a legitimate right to cross-examine the plaintiff on the additional affidavit. (Paras 1-5)
Issue of Consideration
Whether the trial court was justified in rejecting the application filed by defendant no.1 under Order XVIII Rule 17 CPC to recall him for cross-examination on the additional affidavit filed by the plaintiff, and whether the subsequent order imposing costs was valid.
Final Decision
The writ petition is allowed. The orders dated 01.09.2022 and 02.01.2023 passed by the XVIII Additional City Civil and Sessions Judge, Bengaluru in O.S.No.8000/2012 are set aside. The trial court is directed to recall the plaintiff for cross-examination on the additional affidavit filed by him, subject to payment of costs of Rs.5,000 to the plaintiff.
Law Points
- Order XVIII Rule 17 CPC
- Recall of witness
- Cross-examination
- Additional affidavit
- Right to fair trial
- Opportunity of hearing
