Laxmi Kant Upadhyaya vs Dev Narain Misra

B.K. Rathi, J.—The Suit No. 38 of 1986 was filed by the opposite party against the applicant and is pending in the Court of XII Additional District Judge, Allahabad. The suit is for eviction and recovery of rent and damages. The evidence of the opposite party in the suit has been concluded. Thereafter, an application was moved by the opposite party to re-examine himself on certain points. The said application has been allowed by the impugned order dated 14.10.1999. Aggrieved by it, the present revision has been preferred.

I have heard Sri Vishnu Gupta, learned Counsel for the revisionist and Sri O.P. Gupta, learned Counsel for the opposite party and have perused the judgment.

Learned Counsel for the revisionist has placed reliance on Section 138 of the Evidence Act and contended that the witness can be called for re-examination on the point as mentioned in that section. That no such case has been made out and, therefore, the learned trial court has erred in permitting the reexamination. It is true that the conditions for re-examination of the witness mentioned in Section 138 of the Evidence Act has not been fulfilled in this case. However, this section does not restrict the powers of the Court to recall the witness for further examination. Such an order can always be passed by the Court in the interest of justice and to prevent the abuse of the process of the Court In exercise of inherent powers u/s 151, CPC Therefore, the argument that the order for reexamination can be passed in the circumstances mentioned in Section 138 of the Evidence Act only cannot be accepted.

The copy of the application for re-examination moved by the opposite party has also been filed which is dated 16.4.1999. It is mentioned in the application that on account of accidental slip and omission by the Plaintiffs counsel, some technical flaw remains to be fulfilled. It is further mentioned that notice is required to be proved which accidentally escaped the attention of the counsel. In my opinion, for exercise of power to recall a witness u/s 151, CPC the party should show a sufficient reason that it is necessary in the interest of justice. The parties cannot be permitted to recall himself to be reexamined on any point. The points on which the Plaintiff wants to reexamine himself has not been disclosed. Therefore, the impugned order on the application of the opposite party cannot be maintained and is fit to be set aside.

The revision is accordingly allowed and the impugned order dated 14.10.1999 is quashed.

However, it is clarified that the order has been quashed only for the reason that specific points on which the witness is required to be re-examined has not been mentioned in the application. The Plaintiff, therefore, may move a fresh application specifying the points on which further examination is required. If such an application is moved, the trial court may pass a fresh order for recalling the Plaintiff for further examination notwithstanding any observation made above.

It may also be added that the suit is for eviction and is pending since 1986. Therefore, the trial court will proceed with the suit very expeditiously.

The revision is accordingly disposed of.