Muhammad Sajid Vs Ibrar Gul

PESHAWAR HIGH COIJRT, ABBOTTABAD BENCH.

FORIV OF ORDER SHEET

Date of Order of Order or other Proceedings with Signature of Judge (s) Proceed ings

21.07.2022 CR.No.220-N2022

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Present: Sardar Chanzeb. Advocate for the petitioner KAMRAN HAYAT MIANKHEL J.- This revision petition is directed against the order dated 03.06.2022 passed by the learned Additional District Judge-Vll, Abbottabad, through which application of the petitioner for recalling of witness was dismissed.

2.Brief facts of the case are that the petitioner/ plaintiff filed a suit No.'1 7/1 of 2016 against respondenUdefendant for recovery of Rs.100,000i- on the strength of a pronote dated 01 11.2014. During trial of the

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suit, Yasir Khan, Petition Writer (PW-1) appeared on 25.04.2022 and was cross-examined by the respondent's counsel in the absence of petitioner's counsel, who was statedly busy in another court. On the same date, petitioner filed an application under Order XVlll rule 17 CPC qua recalling the said witness for re-cross- examination but the same was dismissed with costs of Rs.1000i-, vide impugned order of learned trial court dated 03.06.2022. Hence, instant petition.

3 l have heard the arguments of learned counsel for the petitioner and scanned the record with his valuable assistance.

4.Perusal of record reveals that petitioner filed a suit against the respondent under Order XXXVII CPC for recovery of Rs.10,00,000/- on the basis of pronote' During trial of the suit, Yasir Khan, Petition Writer (PW-1) appeared on 25.04.2022 and was cross-examined by the respondent's counsel in the absence of petitioner's counsel, who was statedly busy in another court. On the same date, petitioner filed an application under Order XVlll rule 17 CPC qua recalling the said witness for re- cross-examination but the same was dismissed with costs of Rs.10001, vide impugned order of learned trial court dated 03.06.2022 The provision of Order XVlll Rule 7 C.P.C is one of the important stipulation in the Civil Procedure Code and cannot be termed as simply procedural in nature and thus a mere technicality, thus for the purposes of analyzing the said rule, in general and also in the context of instant case, lfind expedient to reproduce the same which reads as below:-- "17. Court maY recall and examine witness.---The Court may at any stage of a suit recall any witness who hal been examine<j and may (subject to the law of evidence for the time l being in force) put such questions to

him as the Court thinks fit."

5.From the clear language of the above, and the precedent case law on the subject, the Court has the due empowerment and the jurisdiction to call any witness at any stage of the suit, on its own motion and even upon an application of either of the parties' But the question is as to what circumstances shall warrant for the exercise of the said power and/or whether a party to the litigation has an absolute right, or as a matter of course can require the Court to invoke its power and call a witness for the re- examination at any point of time and the stage of the proceeding, because it shall be a mere technicality to do so? The answer to the above is in the negative (emphasis supplied). ln my view the litigant has no such absolute right at all; the witness also should not be summoned by the court while exercising its discretion as a matter of routine, rather it all dependents upon the facts of each case, as to when and why the Court should exercise its discretion in this behalf for wlrich the court has to provide judicial reasons; and in this context some light has been thrown in the judgment reported as Messrs llyas Marine and Associates Ltd. v. Muhammad Amin Lasania and another (1997 CLC 753), in which it has been held as lunder,:

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I "fhe Court has thc discretion to recall

any witness who has already been examined, and Put necessary questions to him This Power of recalling the witness can be exercised suo motu by Court or on aPPlication moved by any party in the suit, but, this discretion has to be exercised judiciously looking to the circumstances of each case and not to fill the lacuna in the evidence of any party in the suit. The PartY making such apPlication has to advance reasonable and convincing grounds for recalling the witness and after the Court is satisfied that it was necessary for proper adjudication of the suit then only this discretion is to be exercised .. . ...The learned Advocate for defendant has relied on case reported in AIR 1947 BombaY 156 where it has been held that discretionary powers of the Court under Order 18, Rule 17, C.P.C. are to be exercised in excePtional circumstances ln the instant case there is no exceptlonal circumstances in favour of the plaintiff to allow the application. He has cross-examined the witness at his own insistence in preference of his Advocate. He has been frequentlY changing the Advocates and one of the document which he wanted to confront with the witness was not allowed to be exhibited bY the Court and non- confronting of other documents is due to his own negligence, or it maY be that at the time of cross-examination he did not feel it necessary to do so; and now it may be a afterthought The Court can never be a PartY to fill lacunae in evidence of anY side "

6.From the wording of the noted rule and from the ratio of the judgment quotecl above, it is quite obvious

that the exercise of discretiotr by the Court in terms thereof is circumvented with due care and caution; it should be exercised in exceptional circumstances; party requiring the summoning of the witnesses should not be allowed to fill up the lacuna of his case, which has been left due to the negligence and lapse of such party; no new case should be allowed to be set up by the delinquent party, especially when such evidence was available at the time when the party had the opportunity to lead evidence. and it is not a case of discovery of evidence coming into being or discovered subsequently;

the delinquent party have to set out reasonable and convincing grounds for rr:calling the witness while conducting the examination -in-chief or the cross- examination as the case may be. The true object of re- examination of the witness as a matter of fact and in law, is to clear any obscurity and/or ambiguity which might have arisen during the course of his

examination/statement and r'rrithout being clarified it might lead to injustice and might create difficulty to the court to adjudicate the matter to cio justice But it should categorically be held that sLrch provisions (Order XVlll' Rule 17 C.P.C.) is not meant and is not designed for the

purposes of enabling a party to fill up the omissions in the

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evidence of a witness who has already been examined, rather the purpose, the nature and the scope of the power available to the Corrrt under the said rule is to enable the Court to seek clarification on any issue or to have a doubt cleared in the statement of a witness which if left outstanding, would be difficult for the Court to take a right decision. This Court does not find that the case set out by the petitioner in his application for re-summoning the witness under Order XVlll, Rule 17 C'P'C' qualify the aforesaid test and also the whole proceedings took place before the court, thercfore, the learned trial court has rightly dismissed the said application' Learned counsel for petitioner has failed to point out any illegality or irregularity committed by the learned trial court while passing the impugned order calling for interference by this court in its revisional jurisdiction' 7 The upshot of the alr'.rve discussion is that this revision Petition being devoid of force, is herebY dismissed in limine

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t Aftab PSr