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M/S RAJDOOT PAINTS (INDIA) versus M/S SHIV HARDWARE & GENERAL STORES, & OR

High Court of Punjab and Haryana, Chandigarh

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M/s Rajdoot Paints (India) v. M/s Shiv Hardware & General Stores, & Or - CR-2044-2005 [2006] RD-P&H 5463 (10 August 2006)

In the High Court of Punjab and Haryana at Chandigarh

C.R. No.2044 of 2006

Date of decision:21-7-2006

M/s Rajdoot Paints (India) ..........Petitioner Versus

M/s Shiv Hardware & General Stores, & Ors. .........Respondents.

CORAM: Hon'ble Mr.Justice Vinod K.Sharma
Present: Mr.Sanjay Judge, Adocate, for the petitioner.

Mr. Rajnish Narula, Advocate, for the respondents.

VINOD K.SHARMA,J.

This civil revision has been filed against the order dated 4-3-2006 passed by the Civil Judge, (Junior Division), Chandigarh, declining the application of the plaintiff-petitioner moved under Order 18 Rule 17 of the Code of Civil Procedure, for recalling the plaintiff as a witness for re-examination.

The facts leading to the present case are that the plaintiff led his evidence in examination in chief and got exhibited affidavit as PW-1/A. However, inadvertently, the documents which were already on record, could not be exhibited. The case of the plaintiff was that the production of documentary evidence by exhibiting the documents was essential for just and proper adjudication of the case.

The said application was contested by the respondent-defendants on the ground that plaintiff had already tendered his evidence and he was subjected to cross- examination. Thereafter they had tendered their affidavits and the case was fixed for cross-examination of the defendants. Therefore, it was held by the trial Court that this application could not be allowed at this stage. For this purpose the trial Court placed C.R. No. 2044 of 2006

on the judgment of this Court in Surinder Kaur Vs. Karanbir Singh, 2004 (3) RCR (civil) 161, wherein it has been held as under:- "Civil Procedure Code, Order 18 Rule 17 Additional evidence-- Application for recalling of witness for cross- examination The provision U/O 18 Rule 17 is only requirement of the Court that it may, at any stage of the suit, recall any witness who had been examined earlier and put to him such questions as it may deem fit. The provision is merely an enabling provision for convenience of the Court and not for the parties to re-examine any witness to fill the lacunae in the case."

The trial Court also placed reliance on another judgment of this Court in Balkrishan Shivappa Shetty Vs. Mahesh Nenshi Bhakta and others, 2003 (4) RCE (Civil) 181, in which it was held as under:- " Civil Procedure Code 1908 Order 18 Rule 17- Under Order 18 Rule 17 has power to recall any witness at any stage of proceedings and put him questions as it thinks fit, but cannot recall witness for cross-examination by either party." In view of these judgments by coming to the conclusion that the power under Order 18 Rule 17 of the CPC is only vested in the Court and, therefore, could not be invoked at the instance of the parties, the application was dismissed.

A reading of the judgments referred to above shows that restriction is put on a party to call a witness for further examination, and it has also been held that the witness cannot be recalled to fill any lacuna and the power under Order 18 Rule 17 of the Code of Civil Procedure is that of C.R. No. 2044 of 2006

the Court only and not of a party.

Learned counsel for the petitioner relied on the judgment of this Court in Prem Lata Vs. Ram Sarup, 2005 (4) RCR (Civil) 423 wherein this Court was pleased to hold that law of procedure is handmaid of justice and it must be used to advance the cause of justice and to avoid causing injustice. Therefore, the documents necessary for the just decision of the case must be allowed to be produced. Learned counsel further relied on the judgment of the Hon'ble Supreme Court in the case reported as Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, 2005 (3) RCR 530, wherein the Hon'ble Supreme Court was pleased to hold that even after deletion of Order 18 Rule 17-A of the CPC, the Court has inherent power to permit the parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence and the deletion of Order 18 Rule 17-A by Amendment Act 2002 had no effect on the power of the Court to allow additional evidence. Thus the reading of two judgments shows that the rules and procedure are handmaid for advancement of justice and cannot be used to subvert the same. On the given facts of the case, it is the duty of the Court to exercise its inherent power for advancement of justice and not go into technicalities of the matter. In the present case, the documents sought to be proved and exhibited were produced by the plaintiff-petitioner along with the plaint and the same could not be exhibited due to inadvertence. It is also not in dispute that the documents are necessary for just and proper adjudication of the case. The defendant-respondents have merely filed their affidavits in examination-in-chief and their cross-examination was yet to start.

C.R. No. 2044 of 2006

Therefore, in these circumstances, in the opinion of this Court, it was the duty of the lower Court to have exercised its inherent jurisdiction to re- examine the plaintiff and permit him to exhibit the documents on record.

Accordingly, the civil revision is allowed, the impugned order is set aside and the plaintiff petitioner is allowed to be re-examined for exhibiting the documents already on record. He would also be allowed to exhibit any document which is not on record. Needless to say that the defendant-respondents would be given an opportunity to cross-examine the plaintiff on additional statement to be given by him. The plaintiff shall pay the costs of Rs. 5,000/-

July 21,2006 (VINOD K.SHARMA)

'dls' JUDGE


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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