GANESH MANDAP SERVICE Vs. JAYANTI @ JENISH NARSIBHAI SARADIYA

JUDGEMENT

(1.) The petition is filed under Article 227 of the Constitution seeking to quash and set aside the order dated 31.01.2019 passed by the Commissioner, Employees' Compensation Act - the Labour Court below application Exh.46 in WCNF Application No.4 of 2008.

(2.) It appears that in the application for claiming compensation under the Employees' Compensation Act, after the evidence of the respondent - original applicant was over and Dr. Nitiben R. Sheth was examined by the respondent as his witness, the respondent filed application Exh.46 to recall his witness stating that Dr. Nitiben R. Sheth since stated in her deposition that she could state about the extent of his disability after she would examine him, she is required to be recalled to give evidence as she examined him.

(3.) Learned advocate Mr.Devnani appearing for the petitioner submitted that the provisions of the Civil Procedure Code, 1908 ("CPC") apply to the proceedings filed under the Compensation Act and as per the law settled, the recall of the witness is not permissible to fill in the lacuna and the lapses occurred during the examination of the witness. Referring to the Order XVIII Rule 17 of the CPC, Mr.Devnani submitted that in view of provisions of Order XVIIII Rule 17 of the CPC, recalling of the witness is permissible only when some new material or fact which were not within the knowledge and are necessary to be brought on record, however, the Commissioner has allowed recalling of the witness contrary to the provisions made for such purpose and allowed the respondent to fill in the lacuna / lapses occurred during the examination of the witness Dr. Nitiben R. Sheth.