Case Note & Summary
The petitioner, M/s. Shewalkar Developers Ltd., was the original plaintiff in a suit for specific performance of contract filed before the learned Civil Judge Senior Division, Nagpur. The respondents were the defendants in the suit. On 21/09/2013, PW-1 Madhukar Ukey was cross-examined by defendants 1 to 3, while defendants 4 to 6 remained absent and an order of 'no cross' was passed against them. Subsequently, defendants 6 & 7 filed an application (Exh.152) to set aside the 'no cross' order, which was allowed. On the same day, a pursis was filed on behalf of defendants 6 & 7 adopting the cross-examination of PW-1 by defendants 1 to 3. Thereafter, defendants 4 to 7 filed an application (Exh.178) for recall of PW-1 for cross-examination. The trial court dismissed this application, leading to the present writ petition. The High Court considered whether the trial court erred in dismissing the recall application. The petitioner argued that the recall would cause prejudice and delay, while the respondents contended that they were entitled to cross-examine the witness. The High Court held that the trial court's order was erroneous as no prejudice would be caused to the plaintiff, and the recall was necessary to afford an opportunity to the defendants to cross-examine PW-1. The court set aside the impugned order and allowed the recall application, directing the trial court to fix a date for cross-examination and proceed with the suit expeditiously.
Headnote
A) Civil Procedure - Recall of Witness - Order 18 Rule 17 of Code of Civil Procedure, 1908 - The trial court dismissed the application for recall of PW-1 for cross-examination by defendants 4 to 7, who had earlier been absent and subsequently allowed to cross-examine. The High Court held that the trial court's order was erroneous as no prejudice would be caused to the plaintiff and the recall was necessary to afford an opportunity to the defendants to cross-examine the witness. (Paras 4-6) B) Civil Procedure - Setting Aside 'No Cross' Order - Inherent Powers - The trial court had earlier set aside the 'no cross' order against defendants 6 & 7 and allowed them to cross-examine PW-1. The High Court noted that the recall application was filed on the same day and the trial court's dismissal was inconsistent with its earlier order. (Paras 3-5)
Issue of Consideration
Whether the trial court erred in dismissing the application for recall of PW-1 for cross-examination by defendants 4 to 7, who had earlier been absent and subsequently allowed to cross-examine.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 30/10/2015, and allowed the application Exh.178 for recall of PW-1 for cross-examination. The trial court was directed to fix a date for cross-examination and proceed with the suit expeditiously.
Law Points
- Recall of witness
- Order 18 Rule 17 CPC
- Cross-examination
- No prejudice
- Setting aside no cross order
