Anil Prakash Kashav v. Radha Sethi

1. This petition under Article 227 of the Constitution of India impugns the order of the court below dated 20.9.2013 by which the trial court has, in spite of cross-examination of PW-1 being complete, and further evidence being led, directed recall of the witness PW-1 for putting further questions in cross-examination.

2. It is not the case of the respondent herein that because of circumstances beyond control, certain questions could not be put in crossexamination. If certain questions have been put in cross-examination and 2014:DHC:3287 consequently no further questions were put, vested rights arise in favour of the present petitioner, and such vested rights cannot be defeated by recalling of a witness for cross-examination.

3. Also, the respondent/defendant has to still lead the evidence. Whatever according to the respondent/defendant is the evidence in his favour to disprove the case of the petitioner/plaintiff, then such evidence can always be led by the respondent/defendant during the leading of defendant’s evidence, however, there cannot be repeated opportunities for crossexamination to filling up the lacunae in a case on account of non-crossexamination. The trial court itself records that lacunae in a case cannot be filled up yet recalls the witness for cross-examination. Clearly this is impermissible.

4. No doubt, powers under Article 227 of the Constitution of India are exercised sparingly, however, vested rights which have accrued on account of non cross-examination with respect to certain aspects which have arisen in favour of a party cannot be disturbed by permitting lacunae in a case to be filled up putting further questions in cross-examination.

5. In view of the above, the petition is allowed. The impugned order of the trial court dated 20.9.2013 permitting recalling of PW-1 for crossexamination is set aside. Parties are left to bear their own costs. JULY 16, 2014 VALMIKI J. MEHTA, J. ib