MOHAN SAO Vs. INDRAWATI LAL

JUDGEMENT

(1.) I have heard Mr. Rabindra Kumar Sinha No. 2, the Learned Counsel appearing on behalf of the Petitioner and Mr. Jitendra Kishore Verma, the Learned Counsel appearing on behalf of the Respondent. This application under Article 227 of the Constitution of India has been filed by the Plaintiff-Petitioner against the order dated 27.7.2011 passed by Subordinate Judge-3rd, Patna in Title Suit No. 246 of 2004 whereby the learned Sub-Judge, Patna rejected the petition dated 13.7.2011 filed by the Petitioner to recall Smt. Indrawati Lal, D.W. 5 for her further cross-examination.

(2.) The Learned Counsel for the Petitioner submitted that at the time of argument of the case, it was felt by the counsel that on some important points, Smt. Indrawati Lal, D.W. 5 has not been cross-examined and, therefore, the application was filed but the learned Court below rejected the said application by the impugned order. The Petitioner has prayed to recall the said D.W. 5 to cross-examine on particular point mentioned in the application. The learned Court below rejected the same without assigning tenable reasons and, therefore, the learned Court below has not exercised a jurisdiction vested in it by law and, thereby great prejudiced is caused to the Petitioner.

(3.) On the other hand, the Learned Counsel appearing for the Respondent sub-mitted that D.W. 5 was earlier examined on Commission for two days at Patna. She resides at New Delhi and after much effort and persuasion, she made herself available for examination and cross-examination. After her full cross-examination, the case of both the parties was closed and thereafter the case was fixed for argument. On the ground that during course of argument, it was felt by the Learned Counsel for the Petitioner that further cross-examination is required to be made is not a ground for recall of the witness. The hearing of the case is going on and, therefore, the learned Court below rightly rejected the application for recall. In such view of the matter, this Court cannot interfere with the impugned order in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.