Ganga Ram vs 1st A.D.J. Gonda and Others

Devi Prasad Singh, J.—Heard Mr. U.S. Sahai, learned Counsel for the petitioner. None appears for the respondents.

The plaintiff petitioner entered into an agreement for transfer of land/house with one Smt. Jagdei on 25.12.1971. On account of non-compliance of agreement, the plaintiff petitioner filed a suit for specific performance of contract which was registered as regular suit No. 122 of 1974. The suit was dismissed on 12.5.1980.

Feeling aggrieved with the dismissal of the suit, the plaintiff petitioner filed an appeal u/s 96 CPC which was registered as appeal No. 191 of 1980. An application was moved for recall of the witness Smt. Bachchi Dei at first appellate stage. The application was allowed by the then Presiding Officer and the statement of Smt. Bachchi Dei was recorded on 9.12.1985. In the meantime, the Presiding Officer changed and Mr. Lavkush Saran Shukla joined as Ist Addl. District Judge, Gonda. An application dated 11.8.1986 (Annexure-1) was moved by Shri Moti Lal, defendant with the prayer that the entire proceeding including the statement dated 9.12.1985 may be recalled. It was stated that the statement was recorded in absence of the counsel. The application dated 11.8.1986 was allowed by the learned First Addl. District Judge, Gonda by the impugned order dated 9.9.1986, hence the present writ petition.

While assailing the order in question, it has been submitted by the learned Counsel for the petitioner that the Court was well within its jurisdiction while allowing the application for recall of witness Smt. Bachchi Dei. Attention of this Court has been invited to Section 107 CPC which provides that the appellate court shall have power to take additional evidence or require such evidence to be taken. Sub-section (2) of Section 107 further provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction. For convenience, Section 107 is reproduced as below:

Powers of Appellate Court. - (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

Keeping in view the statutory provisions as contained in Section 107 CPC, it appears that the appellate Court was well within its jurisdiction to recall the witness on some justifiable ground.

Attention of the Court has further been invited to Order 18 Rule 17 CPC which is reproduced as under:

Court may recall and examine witness.- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.

The provisions contained in Order 18 Rule 17 CPC deals with the power of original Court seized with hearing of the suit and examination of witnesses. In pursuance to the power conferred by Section 107 CPC, the first appellate Court has got jurisdiction to exercise all those powers which is vested in the Court of original jurisdiction. Moreover, an appeal is the continuation of suit and keeping in view the mandate of Section 107 CPC, the appellate Court while recalling the witness does not seem to have acted without jurisdiction. The finding recorded by the appellate court while passing the impugned order to the extent that the appellate court was having no jurisdiction to recall Smt. Bachchi Dei as witness seems to be incorrect appreciation of law.

The next ground which seems to call for adjudication is whether the appellate Court was right in recording the statement of witness in absence of counsel. It has been observed in the impugned order that the clerk of the counsel was present at the time when the statement was recorded.

The factual narration as contained in the impugned order reveals that the statement was recorded in absence of learned Counsel for the respondents defendants and no effort was made by the Court to secure the presence of the counsel for the defendants. In case the learned Counsel for the defendant was not present or he had gone out of station, then it was expected that the appellate court shall adjourn the case and a fresh date should have been fixed for recording the statement of the witness.

Since the impugned order has been passed with the assumption that the appellate Court lacks jurisdiction to record evidence, it shall be appropriate that the matter be reconsidered by the appellate Court on the basis of the evidence on record with assumption that the appellate Court was having jurisdiction to record the statement of witness on 9.12.1985. The appellate Court should also consider and record finding with regard to maintainability of recall application.

In view of above, the writ petition is allowed and the impugned order dated 9.9.1986 is set aside remitting the matter to the appellate Court to re-consider the application dated 11.8.1986 after providing opportunity of hearing to the parties, keeping in view the observation, made hereinabove. Needless to say that in case the appellate Court finds that to meet out the ends of justice, it was necessary to recall the statement of Bachchi Dei afresh, then it shall be open for the appellate Court to sustain the earlier order. Let the application be decided by the appellate court within two months from the date of receipt of a certified copy of this order. The appeal itself shall be decided on merit expeditiously and preferably within a period of six months from the date of receipt of a certified copy of this order.

The writ petition is allowed accordingly. No order as to costs.