2012 PLP 828 (CLC)

CH. SHAHID SAEED, J.

A suit for recovery of Rs.76,000/- was filed by the respondent. Issues were framed on 17-11-2003. However, the right of petitioner-defendant to cross-examine P.W.-1 was closed on 26-11-2005 due to non-appearance of learned petitioner's counsel on the very day. The petitioner filed application under Order XVIII, Rule 17, C.P.C. after about two years of the said order for re-summoning the said witness which was rejected on 6-7-2009. Feeling aggrieved, the petitioner assailed the said order in the revision petition which also met with the same fate vide order dated 20-4-2011.

2. Learned Additional Advocate-General inter alia contends that there is no bar to re-summon any witness by the court and the court may summon any witness at any stage during the pendency of the suit prior to the pronouncement of final judgment but the learned courts below have failed to exercise their jurisdiction vested with them. Learned Law Officer avers that the statement of P.W.-1 is of very much significance and his cross-examination is essential to reach a just and proper conclusion, therefore, the said witness be re-summoned and the petitioner be granted opportunity for his cross-examination.

3. On the other hand, learned counsel for the respondent has vehemently controverted the arguments advanced by learned Law Officer mainly on the grounds that the petitioner has failed to cross-examine P.W.-1 and also his application under Order XVIII, Rule 17, C.P.C. is badly barred by time, therefore, he is not entitled to any opportunity of cross-examination of said P.W. He prays that this writ petition be dismissed.

4. Arguments heard. Record perused. The record shows that both the learned courts below observed that the petitioner was not vigilant and the application under Order XVIII, Rule 17, C.P.C. was filed after an inordinate delay of about two years, as such, the petitioner was not entitled to any relief. However, Order XVIII, Rule 17, C.P.C. is an independent provision of law by virtue of which the courts have ample powers to re-summon any witness at any stage of the case before the pronouncement of the final decision. This preposition may further be elaborated as any party may produce any witness or re-summon any witness at any stage prior to disposal of the case such as at initial stage when the list of witnesses is provided, at the time when the evidence is recorded or at any time during the pendency of the appeal or the revision as provided under Order XLI, Rule 27, C.P.C. There is discretion of the courts to exercise their jurisdiction to provide justice to the parties. Learned courts below treated the application as review after closing of right of cross-examination which is not justified. Therefore, the writ petition in hand is allowed, the impugned orders are set aside and the learned trial court is directed to re-summon P.W.-1 as court witness. Both the parties will have the right to cross-examine the said witness. Parties are directed to appear before the trial court on 13-2-2012. K.M.Z./P-6/L Petition allowed.