The High Court of Calcutta, while disposing of an application filed against an order passed by the learned Additional District Judge allowing the application under Section 151 of the Code of Civil Procedure filed by the opposite party, held that the power under Section 151 has to be exercised in a manner that non-exercise of such power would either lead to abuse of the process of court or the party who is being denied of such order would face genuine injustice in the hands of the court.
Brief Facts:
The petitioner is a contesting defendant in an original suit, filed for grant of probate of the last Will and Testament. The learned court allowed an application filed by the opposite party No.1 under Section 151 of the CPC for re-calling witness, on the ground that a similar application was allowed by an order dated April 13, 2018, which permitted re-examination. The learned court was of the view that the opposite party No.1 should be recalled to prove the document in place of the learned Advocate who had been handed over the document by the testator. The court held that no prejudice would be caused to the defendants in the suit. Thus, there was no impediment on the part of the learned court to allow such an application.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the learned Court mechanically allowed the application. The opposite party No.1 had ample opportunity to prove the document when the evidence was going. The document was not disclosed at the first instance. Even assuming that Section 151 of the Code of Civil Procedure permitted the court to exercise inherent power to recall a witness, such power should be exercised sparingly and only under exceptional circumstances, for the ends of justice.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that the defendants had waived their right to challenge the order impugned, when a similar order had not been assailed by them before any higher forum. The facts and justice demanded that the prayer for recall be allowed.
Observations of the court:
The court noted that the powers under Section 151 or Order 18 Rule 17 of the Code cannot be invoked in a routine manner, on a party’s mere asking. The very purpose behind the amendment to the Code of Civil Procedure would be defeated in such a case.
The Court observed that the justification given by the learned trial Judge that no prejudice would be caused to the parties if the opposite party No.1 was allowed to recall himself as a witness could not be a just and proper ground for allowing the application at such a belated stage. The power under Section 151 has to be exercised in a manner that non-exercise of such power would either lead to abuse of the process of court or the party who is being denied of such order would face genuine injustice in the hands of the court.
The decision of the Court:
The Calcutta High Court, disposing of the application, held that the order impugned suffers from material irregularity. The same is unreasoned and passed without considering whether the relevant factors for the recall of PW2 existed.
Case Title: Sri Arindam Bose v Sri Sarvadeva Paul Majumdar & Ors.
Coram: Hon’ble Justice Shampa Sarkar
Case No.: C.O. 3553 of 2023
Advocate for the Petitioner: Mr. Ayan Poddar
Advocate for the Respondent: Mr. Probal Kr. Mukherjee
Read Judgment @LatestLaws.com
Picture Source :
