KURIAN, J. - (1.) Leave granted.
(2.) Whether a witness can be recalled under Order 18 Rule 17 of The Code of Civil Procedure, 1908 (hereinafter referred to as `the Code') for further elaboration of aspects left out in evidence already closed, is the issue for consideration in this case.
(3.) There are two suits filed by the respective parties and pending before the Tis Hazari Courts at Delhi. Civil Suit No. 43 of 2009 was filed by the respondents herein for declaration and injunction in Signature Not Verified Digitally signed by respect of the plaint schedule property. In respect of very same Rajni Mukhi Date: 2016.03.14 11:56:53 IST Reason: property, the appellant herein also filed a suit seeking permanent injunction and that suit has been numbered as Civil Suit No. 44 of 2009. The suits were consolidated for common trial, on joint request, by order dated 08.12.2007. Suit No. 43 of 2009, with the consent of the parties, was ordered to be tried in the court where Suit No. 44 of 2009 was pending by order dated 26.09.2005 of the District Judge, Delhi. Much before that, evidence in Civil Suit No. 44 of 2009 had commenced and the appellant herein had been examined as PW-1 and the respondents herein had cross-examined PW-1 as well. That evidence was closed on 16.04.2005. After the consolidation of the two suits, the respondents herein filed an application on 13.04.2010. We shall extract the averments made in the said application as under: "APPLICATION ON BEHALF OF DEFENDANT FOR DISCHARGING THE STATEMENT OF PW-1 AND EXAMINATION OF WITNESS I.E. PW-1 AFRESH UNDER ORDER 18 RULE 17 C.P.C. READ WITH SECTION 151 C.P.C. Sir, The applicant most respectfully submits as under:- 1. That the plaintiff examined PW-1, Sh. Chottu Ram as PW1- on 6.12.2004. His cross examination was concluded on 16.4.2005. 2. That this Hon'ble Court consolidated the present suit with another suit titled as Mange Ram Vs. Chander Kanta etc. vide its order dated 8.12.2007. 3. That while passing the order of consolidation dated 8.12.2007, this Hon'ble Court ordered as under:- "It has been so urged on behalf of both contesting sides that trial in two cases be conducted commonly and evidence led in either case be read in both these cases." 4. The directions or observations of this Hon'ble Court as reproduced above operates prospectively and not retrospectively. 5. That when the Hon'ble Court ordered that evidence in one case may be read in evidence in another case, then plaintiff in Mange Ram Vs. Chander Kanta and Ors. would be deprived of the opportunity of cross examination of PW-1 which was concluded on 16.4.2005, much prior to the date of order of consolidation. 6. That as per settled position of law on this point and as per terms of order of this Hon'ble Court dated 08.12.2007, either the PW-1 be examined afresh or opportunity to cross examine the PW-1 may be granted to the applicant/plaintiff in Mange Ram Vs. Chander Kanta and Ors. It is, therefore, prayed that PW-1 may kindly be examined afresh or opportunity to cross examine the PW-1 in Ram Rati Vs. Mange Ram etc. may kindly be granted to the applicant." ;