1997 PLP 763 (CLC)

This application is moved under Order 18, rule 17 read with section 151, C.P.C. for recalling defendant's witness Muhammad Amin for cross‑examination. According to the affidavit of the plaintiff filed with the application he wants to confront the witness with his signatures on carbon copy of deposit receipt for Rs.90,000 as well as six rent receipts Exhs. 5/2 to 5/7 and also to further cross‑examine the witness on material points as previously the applicant has cross‑examined with witness himself and now he wants cross-examination to be conducted by his Advocate. Defendant filed counter‑affidavit resisting the request of the plaintiff, Provisions of Order 18, rule 17, C.P.C. reads as under:‑‑ "

17. Court may recall and examine witness.‑‑‑The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit." The Court has the 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. In the instant case the main ground advanced by the plaintiff in his application is that he wants his Advocate to conduct further cross‑examination of defendant's witness Muhammad Amin as earlier he himself has done so. A perusal of the record indicates that examination‑in‑chief of witness Muhamad Amin was conducted on 28‑4‑1992, 29‑4‑1992, 3‑2‑1993 and 5‑4‑1995. On the previous date, the plaintiff had himself insisted for cross‑examining the witness and requested the Court to allow him to cross‑examine the witness in preference of his counsel. It is worth mentioning that his Advocate Mr. Khalil‑ur‑Rehman was also present in the Court and at the instance of the plaintiff he also requested the Court to allow the plaintiff to cross‑examine the witness which he did for quite some length. At the end of the cross‑examination when Mr. Khalil‑ur- Rehman has also left the Court, the plaintiff requested the Court to reserve the cross‑examination for his Advocate which was declined. It is also on the record that the plaintiff has the habit of changing his Advocates every now and then, and before Mr. Khalil‑ur‑Rehman he has changed five Advocates and presently he has engaged seventh Advocate. The plaintiff is an educated man and Director of his firm, as such, has full knowledge of the case. He had personally conducted the cross‑examination of the witness in preference of his counsel and his request for adjournment of the case for further cross‑examination has already been turned down by the Court as the suit is pending since 1989. As regards the plea of confronting the witness with the receipt of Rs.90,000 carbon copy of original receipt this document was not allowed to be exhibited, as such, there was no question of confronting the witness with it. As far as non‑confrontation of Exhs. 5/2 to 5/7 are concerned the defendant may not have felt it necessary at that time. The Court cannot act for party to fill the lacunae in any evidence. Even otherwise cross‑examination already conducted by plaintiff indicates that the defendant has admitted execution of many documents and these documents may be amongst those which were admitted by the defendant. The learned Advocate for the plaintiff has relied on case of Rehmat Jan v. Gul Nargis and others (PLD 1989 Lah.506) and Manager Jammu and Kashmir Estate Property of Pakistan v. Khudayar and another (PLD 1975 SC 678). There is no dispute to the fact that the Court has the power to recall the witness at any stage unless the suit is posted for judgment. The witness can be recalled even though recording of evidence is completed and the matter is listed for arguments. 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. In the instant case there is no exceptional 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. With the above reasons I feel that the present application needs no merits and is dismissed accordingly. A.A/I.4‑K Application dismissed.