V.K.SHUKLA,J. - (1.) BRIEF background of the case is that respondents, Aditya Prakash Gupta and Ajay Prakash Gupta filed JSCC suit No.35 of 2003 against Dr. Sachida Nand on 12.05.2003 for arrears of rent and his ejectment from the shop in dispute. Said suit was contested by the petitioner by filing written statement on 03.11.2003. Documentary evidence was also filed by the plaintiffs, details of which are available in Annexure 4 to the writ petition. In the said proceedings, respondent No.1 filed his affidavit (examination in chief) on 26.05.2005. In paragraph 9 of the said affidavit categorical stand was taken that the plaintiffs sent to the defendant notice dated 05.04.2003 under registered cover at the defendant's correct address through the office of Sri Ishtiaq Ahmed Khan duly signed by him in his presence demanding arrears of rent for nine months as well as other taxes. By means of the said notice tenancy was also terminated. Said notice was served upon the defendant by way of refusal to accept the same. In the said case cross examination of respondent No. 1 was also being done. While cross examination of the petitioner-defendant was ongoing, an application was moved by the plaintiffs-landlord, contending therein that permission be accorded to open the sealed registered cover paper No.8-Ga and re-examine the same. Said application was objected to by the defendant by filing objection on 18.08.2006. Said application was allowed on 08.07.2009 on payment of cost by mentioning that on the date fixed sealed cover would be opened only to limited extent, which is in reference to the consideration of notice and at the said point of time cross examination can also be done. Against the said order, revision was preferred, which has been dismissed. At this juncture, present writ petition has been filed. Sri Siddharth Srivastava, learned counsel appearing for the petitioner, contended with vehemence that in the present case, Judge Small Cause acted illegally with material irregularity, as re-examination could not have been permitted to fill up the lacuna, as the plaintiffs had utterly failed to prove the termination of tenancy by notice nor the notice was proved by the plaintiffs, as such the plaintiffs could not have been allowed to fill up the lacuna by re-examination.
(2.) THE factual position which emerges in the present case is that in JSCC suit after written statement was filed, an affidavit 57-ga was filed by the plaintiffs on 26.05.2005 taking therein categorical stand in respect of service of notice and termination of tenancy. Cross examination of plaintiff was ongoing, in between, an application 67-ga was moved on which orders were passed on 08.01.2007 that the same would be disposed of after the cross examination of the plaintiffs was over. Judge Small Cause has considered the matter and allowed the request. Law is clear on the point that in case any issue goes to the matter and same has bearing on the ultimate decision, the trial court may permit recall of such witness for re-examination in chief with permission to the defendant to cross examine the witnesses. In the case of VadirajNagappa Vernekar vs. Shardachandra Prabhakar Gogate, (2009) 4 SCC 410, same view has been reiterated and further in the said case, the question in issue was as to whether a witness having been examined by way of affidavit evidence can be recalled for giving further evidence with regard to the facts not mentioned in the affidavit. In that view of the matter, and in the facts of the said case, view was taken that no case was made out for recall of the witness. Here, in the present case issue is altogether different. In the affidavit which has been filed, material facts have been disclosed in the affidavit and service of notice was by way of refusal, and in this background, as the question which was to be answered on which ultimate decision of the suit was based, for the said purpose authority has been exercised for recall of witness for re-examination. The authority exercised cannot be said to have been exercised arbitrarily, as such same warrants no interference. Consequently, writ petition fails and the same is dismissed.;