SURLEKHA RANI Vs. PARDEEP KUMAR

JUDGEMENT

(1.) Heard through video conferencing. The present revision petition under Article 227 of the Constitution of India has been filed for setting aside the impugned order dated 10.03.2021 (Annexure P-10) passed by the Civil Judge (Junior Division), Sri Muktsar Sahib whereby the application filed by the plaintiff-respondent for permission to recall the witness PW-2, Shyam Sunder, for his re-examination has been allowed.

(2.) The brief facts relevant to the present case are that PW-2, Shyam Sunder son of Nand Lal, was examined in Court and he tendered his affidavit as Ex.PW-2/A in his examination-in-chief. In his examination-in-chief, PW-2 supported the version and contents of the plaint. Thereafter, his evidence was deferred for cross-examination to the next date. On the next date, he totally resiled from his examination-in-chief during cross-examination. When the cross-examination of said witness was completed, the counsel for the plaintiff-respondent requested for permission to re-examine the witness but counsel for the defendant-petitioner herein opposed the same on the ground that an application was required for the said purpose. Subsequently, an application (Annexure P-8) was moved by the plaintiff1 of 8 respondent and a reply (Annexure P-9) to the same was also filed by the defendant-petitioner contending that the application was not maintainable. After hearing arguments of both the parties, the Trial Court vide impugned order dated 10.03.2021 (Annexure P-10) allowed the application and permitted PW-2, Shyam Sunder, to be recalled for his re-examination. However, it was made clear that the witness was being recalled for re-examination as per sequence of Section 137 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Act'). The Trial Court also ordered that the whole evidence of PW-2 will not be conducted afresh as examination-in-chief and cross-examination was already complete. The order dated 10.03.2021 (Annexure P-10) has been assailed before this Court.

(3.) Learned counsel for the defendant-petitioner would contend that the permission to recall the witness PW-2, Shyam Sunder, is actually for examination-in-chief as stated in the application (Annexure P-8). It has further been argued that in case the witness is permitted to be re-examined the witness could be tutored. Learned counsel has further argued that the application itself was filed under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') and, hence, the same was not maintainable inasmuch as there was a specific section under which the application was needed to be filed. In support of his arguments, learned counsel for defendant-petitioner has relied upon the decisions of this Court in 'Dr. Tripat Deep Singh vs. Dr. (Smt.) Paviter Kaur' [CR No.650 of 2017 decided on 04.04.2018] and ' Surjit Kaur & Anr. vs. Pritam Singh & Ors. , 2004 1 RCR(Civ) 402' and that of the Hon'ble Supreme Court in ' Vadiraj Nagappa Vernekar (D) through LRs vs. Sharad Chand Prabhakar Gogate , 2009 4 SCC 410' to contend that the witness could not be recalled to fill in the lacunae.