Case Note & Summary
The petitioner, Michelle Rejji Cope, filed a writ petition challenging the order of the trial court refusing to recall a witness for cross-examination. The respondent, Murial wd/o Benhar Cope, was the opposing party in the suit. The facts reveal that during the trial, the petitioner's counsel arrived late due to unavoidable circumstances, and the trial court closed the cross-examination and refused to recall the witness. The petitioner sought to invoke the inherent powers of the court under Section 151 of the Code of Civil Procedure, 1908. The legal issue was whether the trial court's refusal was justified. The petitioner argued that procedural rules should not defeat substantive justice, citing K.K. Velusamy v. N. Palanisamy, Jai Jai Ram Manohar Lal v. National Building Material Supply, Md. Shahid Ibrahim v. Marium Iqbal, and Atchut Upendra Raikar v. Surya Upendra Raikar. The respondent relied on Gayathri v. M. Girish and Prafulla Narhar Wagh v. Govind Narayan Pimpalkar. The court analyzed that the principles from the cited cases support the view that inherent powers can be invoked to recall witnesses and that procedural rules are handmaids of justice. The court found that the trial court's order was unsustainable as it failed to consider these principles. The court allowed the petition, set aside the trial court's order, and directed the trial court to recall the witness for cross-examination on the same day, with costs of Rs. 5000 payable to the respondent.
Headnote
A) Civil Procedure - Recall of Witness - Section 151 CPC - Inherent Powers - The Court held that inherent powers under Section 151 of the Code of Civil Procedure, 1908 can be invoked to recall a witness for further cross-examination when the counsel was delayed due to unavoidable circumstances, as rules of procedure are intended to be handmaids of justice and not to defeat substantive rights. (Paras 3-6) B) Civil Procedure - Procedural Rules - Handmaid of Justice - The Court reiterated that a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or infraction of procedural rules, relying on Jai Jai Ram Manohar Lal v. National Building Material Supply. (Para 3) C) Civil Procedure - Cross-Examination - Delay of Counsel - The Court held that reaching of counsel before scheduled time could not be a ground for refusing him to re-cross examine the witness, as per Md. Shahid Ibrahim v. Marium Iqbal. (Para 3)
Issue of Consideration
Whether the trial court was justified in refusing to recall a witness for cross-examination on the ground that the petitioner's counsel arrived late, and whether the inherent powers under Section 151 CPC can be invoked in such circumstances.
Final Decision
The writ petition is allowed. The impugned order dated 22.08.2018 passed by the trial court is quashed and set aside. The trial court is directed to recall the witness for cross-examination on the same day. The petitioner shall pay costs of Rs. 5000 to the respondent.
Law Points
- Inherent powers under Section 151 CPC can be invoked to recall witnesses for cross-examination
- Rules of procedure are handmaids of justice
- Delay of counsel is not a ground to refuse re-cross examination
