- (1.) THIS application is at the instance of the defendants and is directed against the order dated April 7, 2011 passed by the learned Civil Judge (Junior Division), 7 th Court, Howrah in Title Suit No.65 of 2000 thereby allowing an application under Order 18 Rule 17 of the C.P.C. on contest with cost.
(2.) THE plaintiffs / opposite parties herein instituted a suit being Title Suit No.65 of 2000 for ejectment on the ground of default and reasonable requirement against the defendants / petitioners herein and for other reliefs before the learned Civil Judge (Junior Division), 7 th Court, Howrah. The petitioners are contesting the said suit denying the material allegations contained in the plaint. Both the parties have adduced evidence in support of their respective contentions and the suit was at the stage of hearing argument. After completion of the hearing on behalf of the defendants / petitioners herein, the plaintiffs filed an application for recall under Order 18 Rule 17 of the C.P.C. That application was allowed by the impugned order. Being aggrieved, this application has been preferred by the defendants.
(3.) NOW , the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the defendants have contended in their written statement that some of the plaintiffs do not reside in the suit premises and as such, the ground of reasonable requirement is not genuine. The defendants have stated specifically in their written statement as to such contentions in different paragraphs of the written statement. At the time of hearing argument on behalf of the defendants, the learned lawyer for the defendants argued that the plaintiffs have no document relating to residence at the suit premises, voters' identity card, ration card, etc. at any point of time and so they have failed to produce the same. It is only at that stage, the plaintiffs have wanted to recall the P.W.3 on the points as appearing at page no.45 of the application. On perusal of the questions to be put on recall of the P.W.3, it appears that these points are not at all with regard to new evidence to be introduced or the new facts discovered subsequently. The plaintiffs have wanted to provide those documents only on the basis of the argument advanced by the learned Advocate for the defendants. Those are not new evidence sought to be introduced at all. Mr. Probal Mukherjee, learned Advocate for the petitioners has referred to the decision of Vadirajj Naggappa Vernekar (Dead) through LRS. v. Sharadchandra Prabhakar Gogate, 2009 4 SCC 410 and thus, he draws my attention to the paragraph no.s 25 to 30 of the said decision. According to this decision, the exercise of power under Order 18 Rule 17 of the C.P.C. shall not be done as a general rule merely on the ground that his recall and re -examination would not cause any prejudice to the parties. Such power should not be invoked to fill up the lacunae in the evidence of the witness which is already recorded. It is intended to acquire any ambiguity that may have arisen during the course of his examination. In the instant case, since defendants have already raised the questions that the plaintiffs do not reside in the suit premises but elsewhere and the parties have completed their evidence, the questions to be put cannot be described at all as new evidence sought to be introduced or new facts discovered subsequently. This is nothing but to fill up the lacunae.;