SEPHALI BERA Vs. SUTUSHAR KANTI BARIK

JUDGEMENT

(1.) In my view, there is no merit in this revisional application and therefore I am not inclined to entertain it even at the stage of moving this revisional application. The reasons are as follows :

(2.) This revisional application is directed against an Order being Order No. 82 dated 17th of April, 1995 passed by the learned Additional District Judge, First Court at Alipore in Original Suit No. 6 of 1983. By the impugned order the Additional District Judge, First Court at Alipore allowed an application filed by the plaintiff/opposite party for recall of P.W. 3 and also permitting further cross-examination of P.W. 3 and other witnesses to be examined. It appears that the impugned order has been passed by the Trial Court in a suit for grant of probate of a Will executed by the deceased father of the opposite party Sukumar Ranjan Barik. It is true that evidences were taken and taking of evidence was closed by the Trial Court. At that stage a petition was filed by the opposite party for recalling P.W. 3 and for permitting him to cross-examine P.W. 3 and to adduce further evidence. The learned Judge by the impugned order has taken into consideration the entire materials on record and on such considerations has given due reasons for grant of such reliefs to the plaintiff/opposite party. Mr. Guha, the learned Advocate appearing for the petitioner, however, challenges the aforesaid impugned order mainly on the ground that if such permission is granted to the plaintiff/opposite party to recall P.W. 3 and to permit the plaintiff/opposite party to cross-examine him any further that will prejudice the defendant/petitioner. In support of this contention Mr. Guha relied on three decisions, one of a learned Single Judge of Allahabad High Court, another of the Division Bench of this Court and the last one of the Bombay High Court. The Bombay High Court decision is reported in AIR 1992 Bombay page 406 (Steelage Industries Limited and Another Vs. Shrimati Chander Bagai) . The Allahabad High Court decision is reported in 1990 Criminal Law Journal NOC 165 (Allahabad) (Charan Singh Vs. State of U.P.) and the Division Bench decision of this Court is reported in AIR 1994 Calcutta 224 (Lilabati Debi alias Lilabati Sarma Vs. Messrs Jute and Company Limited) . In my view, the aforesaid three decisions cited at the bar on behalf of the petitioner cannot be applied in the facts and circumstances of this case. So far as 1990 Criminal Law Journal NOC 165 (Allahabad) is concerned it appears that the said decision was made in connection with a criminal case and that there was an observation of the learned Single Judge of the Atlahabad High Court that the recalling of witness by the prosecution for cross-examination one month after discharge of witnesses was not proper. It is, difficult to understand how the principles laid down in a criminal case which is governed by the provisions of Code Criminal Procedure would be made applicable in a case where the provisions of the Code of, Civil Procedure involved. Apart from that the aforesaid single bench decision has nowhere said that under no circumstances recalling of witnesses cannot be permitted. Only it observed in the facts and circumstances of that case that recalling of a witness was not proper because such a prayer was made after one month after discharge of witnesses. So far as Division Bench decision of this Court reported in AIR 1994 Calcutta 224 is concerned, the Division Bench of this Court in the facts and circumstances of that case held that the Trial Court having failed to consider the Prejudice that would be caused to the aggrieved party by permitting one party to adduce fu her evidence and to cross-examine the witnesses, the application filed by the defendant in that suit was liable to be rejected. (Emphasis supplied) It will also appear from the judgment of the Division Bench that such a prayer was rejected by it also on the ground that the petitioner in that revisional application had suffered prejudice by the order allowing the opposite party to adduce further evidence and to cross-examine the witnesses as that would protract the litigation by myrade devices (sic) of the other party and therefore the petitioner suffering inconvenience and hardship and the Trial Court not having taken into consideration of the same had failed to exercise the jurisdiction vested in it by law and therefore, acted illegally and with material irregularity. Therefore, in the facts and circumstances of that case it was held that an aggrieved party in that case suffered a prejudice for allowing the prayer for recall. So far as the present case is concerned, the Trial Court rightly observed that the plaintiff/opposite party should be given an opportunity to recall the P.W. 3 for the purpose of enabling him to get the Will in question proved by P.W. 3 as the P.W.3 was admittedly one of the contesting witnesses to the Will in question and if further examination on being recalled by the plaintiff/opposite party is allowed, there could not be at all any prejudice to the contesting defendant No. 1 in any way. It was rightly observed by the Trial Court in the impugned order that the opposite party could not also claim that the Will in question could have been proved by some other contesting witness who are still alive. In my view, the Trial Court also rightly held that the petitioner had not been able to say how the petitioner would be prejudiced if the plaintiff was given such right to recall the P.W. 3. Therefore, in view of the aforesaid findings of the Trial Court, it has rightly allowed the application of the plaintiff for recalling P.W. 3 by the impugned order. So far as the last decision cited at the bar on behalf of the petitioner reported in AIR 1992 Bombay page 406, Steeltage Industries Limited and another Vs. Srimati Chander Bagai is concerned, it appears to me that in that decision a learned Single Judge of Bombay High Court has only held that under inherent power, the learned Advocate of the plaintiff cannot be allowed to conduct examination as that would amount to circumventing provisions of the Code, In that case an application under Order 18 Rule 17 read with Sec. 151 of the Code of Civil Procedure was filed by the plaintiff for recall of a witness in a suit for recovery of the possession filed on the ground of bona fide requirement. The Advocate-in- charge of the case had not with an accident on his way to the Court Examination-in-Chief of the plaintiff was conducted by another Advocate on the same day in the absence of the learned Advocate-in-charge without putting essential questions with regard to bona fide requirement and witnesses also were cross-examined. An application was made for permission to supplement the examination-in-chief. In the background of this fact the Bombay High Court held that the proper order that would have been passed by the Trial Court was that after the completion of cross-examination the Court ought to have recal led the plaintiff and put to her questions relating to bona fide requirement as contained in the plaint and thereafter allowed cross-examination in respect thereof - But inherent powers could not be exercised to conduct examination as that would amount to circumventing provisions of the Code. Therefore, it is evident from the judgment of the Bombay High Court also that the Court retains power to recall a witness even after conclusion of the cross-examination. In that decision the Bombay High Court has only held how such recall could be made by the Court. Therefore, this decision cannot be of any help to the petitioner.

(3.) There is another reason for which no interference is also called for in the exercise of my revisional power under Sec. 115 of the Code of Civil Procedure against the impugned order. Admittedly the impugned order would show that the Trial Court had allowed the P.W. 3 to be recalled. The question therefore, arises whether the said order in question is revisable. It has been held in the case of Shiblal Vs. Filmistan Distributors, AIR 1970 Supreme Court page 406 that when 'the Court passed an order allowing a witness to be examined, no right or obligation of the parties in controversy is decided and hence a revisional application is incompetent. In the present case the Trial Court has allowed recall of the P.W.3. In my view, by such no right or obligation of the parties in controversy has been decided. Therefore; following the principles laid down in the case of Shiblal Vs. Filmistan Distributors, AIR 1970 Supreme Court 406, I am of the view that the "impugned order does not come within the meaning of case decided' in Sec. 115 of the Civil Procedure Code." This decision of the Supreme Court was also followed by a learned Single Judge of the this Court in 85 Calcutta Weekly Notes page 506, Kalibala Akhuli Vs. Shambhu Akhuli and Others. Therefore, in my view, "the impugned order is not revisable because an order to be revisable must be one that had it been made in favour of the party applying for revision would have finally disposed of the suit or the proceeding or would have adjudicated certain rights and obligations in controversy between the parties" (Emphasis supplied) Accordingly, there is no merit in this revisional application. The revisional application is therefore, rejected. There will be no order as to costs. Office is directed to supply certified xerox copy of this order to the learned Advocate for the petitioner immediately if it has already been applied for. Revisional application dismissed. <span class='hidden-print'> ( <a href='Judgement.aspx?q=Indian Civil Cases]1996]2]&p=1&pos=154&qType=4'>Previous</a> <a href='Results.aspx?q=Indian Civil Cases]1996]2]&p=1&rsv=C&qType=4'>Hitlist</a> <a href='Judgement.aspx?q=Indian Civil Cases]1996]2]&p=1&pos=156&qType=4'>Next</a> ) </span>