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A-5
% 30.08.2011
Present: Mr.P.K. Rawal, Advocate for the petitioner.
Mr. Satinder Singh Mathur, Advocate for the respondent.
+CM(M) No. 537/2010 & CM No. 7277/2010
*
The order impugned before this Court is the order dated
07.01.2010 vide which the apphcation filed by the petitioner i.e.
Anil Khanna seeking recall of PW-3 Nitin Mohan Popli for his cross-
-T ^ examination had been declined.
It is not in dispute that the present petitioner is at war with his sister Anju Kapoor; both the parties have set up different Wills of their deceased father Atam Swarup Khanna; present petition is a petition seeking probate of the Will of their deceased father dated
06.03.1997; the Will set up by the sister Anju Kapoor is dated
07.11.1996. Both the probate petitions have been consolidated and the probate petition filed by the daughter Anju Kapoor is the leading case in which evidence is being recorded. It is also not in dispute that there are other litigations pending inter-se between the parties, one of which is a suit filed for permanent injunction by the present petitioner against his sister. Pleadings of that suit have been placed on record. In para 16, the contention is that the petitioner had been informed by his sister that their deceased father had left the Will with his lawyer Mr. I.V.S. Rao who in turn
2011:DHC:7176 had handed over it to Mr. N.M. Poph, an Advocate. Mr. N.M. Poph is the said Advocate who had been summoned in the witness box and had been examined as PW-3. Record shows that this witness was examined in chief on 03.11.2009 on which date itself he was discharged after cross-examination. The present application seeking recall of this witness was filed on 11.11.2009; contention in the present application is that a relevant document which was an audio cassette i.e. a purported conversation between Anil
Khanna and Mr. Popli had inadvertently not been put to the witness. This request seeking his recall has been declined by the impugned order.
Order 18 Rule 17 of the Code of the Civil Procedure
(hereinafter referred to as the 'Code') grants wide powers to the court to recall a witness where interest of justice so demands; this power can be exercised at any stage of the suit; the application was admittedly filed within a short span i.e. within less than one week on the date when the witness was discharged; the relevancy of this witness is apparently borne out from the submissions made by learned counsel for the petitioner in his suit for permanent injunction; in the reply filed to the present application, the contention was that there is no explanation as to why this document had not been put to the witness at the time when the witness had come into the witness box and no suggestion had also
- been given on this count; thus there is no reason of recall. It is relevant to state that this reply does not dispute the merits of the document which is purported to be put to the witness in his cross- examination; in the interest of justice and keeping in view the fact that this war is on between close relations and also the fact that today in Court there is no denial to this submission which is found mention in para 16 of the suit filed by the petitioner; respondent having admitted that in fact he had made a statement that the Will of her deceased father had been handed over to Senior Advocate
Mr. Rao who in turn had handed it over to Mr. Popli, a ground is made out to recall the aforenoted witness. The impugned order is accordingly set aside. This order is passed subject to payment of cost of Rs.l 0,000/-. Mr. N.M. Popli PW-3 be summoned for the next date for his cross-examination; it is made clear that no further adjournment shall be granted for the said purpose and the petitioner shall complete his cross-examination on the said date.
With these directions, this petition is disposed of.
The observations made herein will not laffect the merit of controversy.
INDERMEET KAUR, J.
AUGUST 30, 2011 a
% 30.08.2011
Present: Mr.P.K. Rawal, Advocate for the petitioner.
Mr. Satinder Singh Mathur, Advocate for the respondent.
+CM(M) No. 537/2010 & CM No. 7277/2010
*
The order impugned before this Court is the order dated
07.01.2010 vide which the apphcation filed by the petitioner i.e.
Anil Khanna seeking recall of PW-3 Nitin Mohan Popli for his cross-
-T ^ examination had been declined.
It is not in dispute that the present petitioner is at war with his sister Anju Kapoor; both the parties have set up different Wills of their deceased father Atam Swarup Khanna; present petition is a petition seeking probate of the Will of their deceased father dated
06.03.1997; the Will set up by the sister Anju Kapoor is dated
07.11.1996. Both the probate petitions have been consolidated and the probate petition filed by the daughter Anju Kapoor is the leading case in which evidence is being recorded. It is also not in dispute that there are other litigations pending inter-se between the parties, one of which is a suit filed for permanent injunction by the present petitioner against his sister. Pleadings of that suit have been placed on record. In para 16, the contention is that the petitioner had been informed by his sister that their deceased father had left the Will with his lawyer Mr. I.V.S. Rao who in turn
2011:DHC:7176 had handed over it to Mr. N.M. Poph, an Advocate. Mr. N.M. Poph is the said Advocate who had been summoned in the witness box and had been examined as PW-3. Record shows that this witness was examined in chief on 03.11.2009 on which date itself he was discharged after cross-examination. The present application seeking recall of this witness was filed on 11.11.2009; contention in the present application is that a relevant document which was an audio cassette i.e. a purported conversation between Anil
Khanna and Mr. Popli had inadvertently not been put to the witness. This request seeking his recall has been declined by the impugned order.
Order 18 Rule 17 of the Code of the Civil Procedure
(hereinafter referred to as the 'Code') grants wide powers to the court to recall a witness where interest of justice so demands; this power can be exercised at any stage of the suit; the application was admittedly filed within a short span i.e. within less than one week on the date when the witness was discharged; the relevancy of this witness is apparently borne out from the submissions made by learned counsel for the petitioner in his suit for permanent injunction; in the reply filed to the present application, the contention was that there is no explanation as to why this document had not been put to the witness at the time when the witness had come into the witness box and no suggestion had also
- been given on this count; thus there is no reason of recall. It is relevant to state that this reply does not dispute the merits of the document which is purported to be put to the witness in his cross- examination; in the interest of justice and keeping in view the fact that this war is on between close relations and also the fact that today in Court there is no denial to this submission which is found mention in para 16 of the suit filed by the petitioner; respondent having admitted that in fact he had made a statement that the Will of her deceased father had been handed over to Senior Advocate
Mr. Rao who in turn had handed it over to Mr. Popli, a ground is made out to recall the aforenoted witness. The impugned order is accordingly set aside. This order is passed subject to payment of cost of Rs.l 0,000/-. Mr. N.M. Popli PW-3 be summoned for the next date for his cross-examination; it is made clear that no further adjournment shall be granted for the said purpose and the petitioner shall complete his cross-examination on the said date.
With these directions, this petition is disposed of.
The observations made herein will not laffect the merit of controversy.
INDERMEET KAUR, J.
AUGUST 30, 2011 a
JUDGMENT