Jaspal Singh v. Sukhdev Singh & Ors.

HON'BLE MR.JUSTICE M.M.S.BEDI

Whether reporters of local papers may be allowed to see the judgment? Whether to be referred to the Reporter? Whether the judgment should be reported in the Digest? PRESENT Mr.Arun Bansal, Advocate, for the petitioner. M.M.S. BEDI, J. (ORAL) The defendant has preferred this revision petition under Article 227 of the Constitution of India, challenging the validity of the order dated 05.11.2009, by virtue of which the trial Court has permitted the plaintiffs-respondents to withdraw the affidavits submitted under Order 18 Rule 1 CPC, in examination-in-chief prior to the cross-examination of PWs. Counsel for the defendant-petitioner has drawn my attention to the interim orders passed by the trial Court w.e.f.

04.08.2008, till the date of passing of impugned order and has . . . 1 C.R.No.7181 of 2009 submitted that the affidavits were submitted by the PWs in the Court on 04.08.2008 and 04.11.2008, respectively but the case was got adjourned by the plaintiffs-respondents for various reasons including the non-availability of the PWs. He has submitted that the application for seeking permission to withdraw the affidavits of the plaintiffs or to amend the affidavit Annexure P-6, is vague and there is no specific facts or pleas mentioned in the application which were claimed by the plaintiffs-respondents, to have been wrongly mentioned. After hearing counsel for the petitioner, I am of the considered opinion that no doubt there had been unreasonable delay on the part of the plaintiffs-respondents to produce the witnesses after 04.08.2008 and 04.11.2008, for cross-examination by the counsel for the defendant-petitioner, but the exercise of inherent jurisdiction to permit the production of fresh affidavits in the shape of examination-in-chief, under Order 18 Rule 1 CPC, prior to the commencement of the cross-examination would not warrant any interference in the exercise of jurisdiction under Article 227 of the Constitution of India.

However, it appears to be a case where for the inconvenience caused to the defendant-petitioner on account of the dilatory tactics adopted by the plaintiffs-respondents, cost could have been imposed. Counsel for the petitioner insists that the ratio of ruling Vadiraj Naggappa Vernekar (D) through LRs Vs.Sharad Chand Prabhakar Gogate, AIR 2009 (S.C.), 1604, laying down that recalling of witness while exercising powers under Order 18 Rule 17 . . . 2 C.R.No.7181 of 2009 CPC, is not meant to be used to fill-up omissions in the evidence of a witness who has already been examined. A perusal of the said judgment indicates that the question which required adjudication by the Hon'ble Apex Court was whether a witness having been examined by way of affidavit, evidence could be recalled for giving further evidence with regard to the facts not mentioned in the affidavit. It was a case where the witness had been cross-examined and an application had been filed for calling the witness for further re- examination-in-chief.