ARJUN LAL Vs. PAPPU LAL @ RAMPRASAD

JUDGEMENT

(1.) THIS petition has been filed against the order dt. 22.03.2012 passed by the Additional District Judge (Fast Track) No. 3, Jaipur Metropolitan, Jaipur, whereby he dismissed an application under Order 18 Rule 17 CPC moved by the petitioner -plaintiff (herein after 'the plaintiff'). A perusal of the impugned order indicates that apart from other aspect of the matter, the learned trial Court has been pleased to dismiss the application under Order 18 Rule 17 CPC on the ground that such an application was not maintainable at the instance of a party to the suit. For this purpose, the trial Court has referred to the judgment of this Court in case of Ashok Kumar Agarwal vs. Padam Kumar Jain, : 2011 (4) WLC (Raj.) 534, wherein in para 11 of the judgment it has been held that "provisions of Rule 17 of Order 18 CPC were not meant for the defendant or the opposite party, but the power to recall any witness, who has been examined earlier, is conferred exclusively on the Court."

(2.) LEARNED counsel for the petitioner submits that the judgment of this Court in case of Ashok Kumar Agrawal (supra) even though purported to be founded upon the judgment of Hon'ble Apex Court in case of Vadiraj Naggappa Vernekar vs. Sharadchandra Prabhakar Gogate, : (2009) 4 SCC 410, is based on a misreading of the said judgment. It is submitted that in para 25 of the judgment in case of Vadiraj Nagappa Vernekar (supra) the Hon'ble Apex Court has instead categorically observed that "the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses". It is submitted that the judgment of this Court in case of Ashok Kumar Agrawal (supra) thus takes a contrary view as against the judgment of the Hon'ble Apex Court in case of Vadiraj Nagappa Vernekar (supra). Learned counsel for the petitioner further relied upon a judgment of the Hon'ble Supreme Court in case of K.K. Velusamy vs. N. Palanisamy, : 2011 (2) SC 667, wherein the Hon'ble Supreme Court has held in para 8 that "the provisions of Order 18 Rule 17 CPC could also be invoked suo moto by the Court or at the request of any party" where warranted. It is submitted that in view of misdirection in law by the trial Court on the maintainability of an application under Order 18 Rule 17 CPC as the instance of a party in a suit the impugned order dt. 22.03.2012 deserves to be quashed and set aside.

(3.) HEARD learned counsel for the parties, perused the material available on record of writ petition including the impugned order dt. 22.03.2012 passed by the trial Court.