Manohar Radios & Anr. v. Nirmal Electronics & Ors.

1. This chamber appeal is directed against the order of the learned Joint Registrar passed on 21.1.2015, whereby the defendants’ application (IA No.1430/2015) under Order XVIII, Rule 17 of the Code of Civil Procedure, 1908 for recalling PW-1 was rejected.

2. The appellants had contended that while preparing for recording of their evidence, they went through the cross-examination of PW-1 and realised that some documents had not been confronted to the witness which needed to be done, otherwise the defendants’ case would suffer irreparably. It was also contended that no new 2015:DHC:1352 documents would be put to PW-1 but questions would be put only apropos the documents already on record.

3. The learned Joint Registrar took into consideration that issues in the case were framed on 12.4.2010. The plaintiffs’ evidence was filed on 27.7.2010 and the examination-in-chief was conducted on 30.8.2011. The said witness was cross-examined at length on four (4) dates, i.e., 30.8.2011, 7.8.2013, 15.7.2014 and 19.8.2014; there was no dispute that ample opportunities had been accorded to the defendants to cross-examine the witness but only upon change of counsel was the application for recall of the witness been filed.

4. The defendants had relied upon the principle that a party should not suffer because of lapse on part of its counsel. To support their contention that questions could be put to witnesses where a lapse had occurred due to counsel or where documents were not exhibited due to oversight, the appellats had relied upon two judgments.[1] The learned Joint Registrar distinguished the two cases on the ground that in the first case relied upon, the permission was granted because some questions which were the AIR 1981 Punjab and Haryana 157; and AIR 1999 Rajasthan 38 requirement of law were left out to be put to the witness; and in the subsequent case, an opportunity was given for exhibiting and proving the documents left out as the party involved was a bank and public money was involved, whereas in the present case neither were the defendants a public institution dealing with public money nor were the questions, which the counsel for the defendants sought to be put to PW-1 was a requirement under law.

5. The learned Joint Registrar also examined the records and concluded that the cross-examination of PW-1 on 15.7.2014 would show that queries with respect to transactions with different firms had been put to the witness; that he had earlier been questioned regarding purchase of goods under different trademarks; that simply because a subsequent counsel felt that some queries have been left out in the cross-examination who had otherwise been cross-examined exhaustively, would not accord a ground in law for recalling of the plaintiffs’ witness for cross-examination. The learned Joint Registrar reiterated the settled law that a witness cannot be recalled for filling up the lacuna left in the crossexamination of a witness.