Prem Sukh and Others vs Dal Chand and Others

J.V. Gupta, C.J.—This petition is directed against the order of the trial Court dated 26th May, 1990, whereby the application of the defendants for additional evidence under order 18, Rule 17-A, Civil Procedure Code, was dismissed.

The plaintiff-respondents filed the suit for declaration and permanent injunction which was decreed. In appeal, the said decree was set aside and the case was remanded back to the trial Court for decision afresh in accordance with law. It was further directed that the trial Court shall recall P.W. 1 to P. W. 4 and shall give opportunity to defendants Nos. 5 to 17 to cross-examine the said witnesses. The trial Court was also directed to give opportunity to the said defendants to produce their evidence When the case was remanded the said defendants moved an application under order 18, Rule 17-A for recalling the plaintiff for cross-examination primarily on the ground that vital and important questions had not been put to the plaintiff by the counsel for the defendants. The said request, was declined by the trial Court primarily on the ground that the direction in the remand order only specified that P.W. 1 to P.W. 4 to be recalled and not the plaintiff who appeared as P. W. 9.

Learned counsel for the defendant-petitioner submitted that the view taken by the trial Court in this behalf was wholly wrong and thus the Court has acted illegally and with material irregularity in the exercise of its jurisdiction. In support of this contention, he has referred to 1987(2) R.L.R. 574 1987 (2) R.L.R. 574 Om Parkash Vs. Sarupa and Others, . On the other hand, learned counsel for the respondents cited 1988 (1) R. L. R. 312 1988 (1) 93 R.L.R. 312

After hearing the learned counsel for the parties, I am of the considered view that when the case was remanded for fresh decision allowing the defendants to lead their evidence and also to recall he witnesses of the plaintiff i. e. P.W. 1 to P W 4. it was a fit case where the plaintiff, who appeared as P.W. 9 could also be recalled on payment of costs if any.

Consequently, this petition succeeds ; the impugned order is set aside and application for recalling the plaintiff is allowed on payment of Rs. 300/-as costs.