T RAMACHANDRA MURTHY Vs. K RAMA MURTHY

JUDGEMENT

(1.) The point that falls for determination is, whether it is competent for the Court of first instance to recall a witness at the instance of the party at a time when not only the arguments in the case were over but the case was even reserved for judgment.

(2.) The relevant facts in brief are: The petitioner plaintiff filed the suit for declaration and possession on the basis of a gift deed against the defendants who tried to face it with a counter claim on the basis of a will said to have been executed by the same person who is said to have gifted the property to the plaintiff. Issues were framed and evidence was let in. Though the evidence was closed in the year 1977, however in June 1979, an additional written statement was filed and thereafter the issues were recast, one of the recast issues being "whether the gift in favour of the plaintiffs wife was accepted or not"? In the month of December, the arguments were heard and judgment was reserved. It is at that time an interlocutory application was filed by the plaintiff for reopening the suit and recalling P. W. 1 to adduce further evidence. The said interlocutory application was dismissed by the lower Court on the ground that in order to circumvent the lacuna in the plaintiffs evidence, the petitioner wanted to recall P. W. 1 to adduce further evidence with regard to the acceptance in this revision.

(3.) The contention of the learned counsel for the revisionist is that under Section 151, Civil Procedure Code, it is competent for the Court to reopen the suit and allow recalling of the witnesses for the purpose of examination or cross examination even at stage when the case is reserved for judgment. Reliance was placed on a number of decisions. One is Ram Swarup v. Kamala Prasad, AIR 1950 Pat 350 wherein a Bench of the Patna High court held: