- (1.) HEARD learned counsel for the petitioner. Instant writ petition has been filed by the plaintiff petitioner to quash the order dated 25.07.2012 passed by Additional District Judge, Bhinmal, District Jalore upon application filed under Order 18 Rule 17 CPC in Civil Original Suit No. 13/2011 whereby, learned trial court rejected the prayer of the petitioner to recall the witness DW/1 Laxman Ram for the purpose of further cross-examination.
(2.) LEARNED counsel for the petitioner submits that in fact four suits were filed including the present suit by the petitioner plaintiff in which statement of DW/1 Laxman Ram were recorded. In the suit No. 13/11 statement of witness Laxman Ram was recorded on 30.03.2011 in which although cross-examination was made with regard to Account no.1211 of the firm in the State Bank of Bikaner and Jaipur Branch Bhinmal but in reply to the cross-examination, no proper reply was given by the DW/1 and in other suit relevant documents of Account No.1211 were placed before the DW/1 for confrontation in which proper reply was given by him but no cross-examination was made from the witness DW/1 Laxman Ram while confronting from the bank account and other documents related to the Bank Account No. 1211, therefore, in the application filed under Order 18 Rule 17 CPC, it is prayed by the petitioner plaintiff to recall the witness but learned trial court rejected the said application on the ground that ample opportunity was given to the petitioner plaintiff to cross-examine DW/1 Laxman Ram and cross- examination has been made with regard to Account No.1211 of the firm M/s Shiv Shakti and reply was also given by him, therefore, at this stage when opportunity has already been granted, the said application for recalling for the purpose of confrontation of document cannot be allowed. Learned counsel for the petitioner submits that when different statements were given by the witness DW/1 Laxman Ram then it was found necessary in this case to recall the said witness for the purpose of confrontation from the document of Bank account but learned trial court rejected the application on the ground that matter is at final stage and evidence of the respondent has already been closed on 11.04.2012, therefore, it seems that application has been filed only to delay the matter. Therefore, the was rejected. As per learned counsel for the petitioner plaintiff, the reason given by the trail court suffers from material illegality therefore in the interest of justice, while exercising inherent powers, this Court can pass an order to re-open the evidence or to recall the witness in view of judgment rendered by Hon'ble Supreme Court in the case of K.K. Velusamy Vs. N. Palanisamy reported in 2011 AIR SCW 2296. Therefore, the order impugned may be quashed and opportunity may be granted. After hearing learned counsel for the petitioner plaintiff, I have perused the order impugned so also the statement of DW/1 Laxman Ram recorded in Suit No. 13/2001. Upon perusal of the detailed cross-examination conducted by the counsel for the petitioner plaintiff, it appears that relevant questions with regard to Account No.1211 of State Bank of Bikaner and Jaipur, Bhinmal was put and answers have already been given by the said witness and the document upon which the petitioner has filed an application to recall the witness for confrontation are related to year 1997, therefore, it cannot be said that those documents were not lying with the petitioner plaintiff at the time of cross-examination of PW/1 Laxman Ram, therefore, obviously, the trial court considered the said circumstance and observed in the order that this application has been filed only to delay the trial. In my opinion, once opportunity is availed by the petitioner and in the cross-examination, relevant questions with regard to Account Number are put to the witness, then now it is not proper to grant liberty again to the petitioner plaintiff to cross-examine the said witness for the same purpose. In the judgment of K.K. Velusamy (Supra), Hon'ble Supreme Court held that there is no specific provision in the Code enabling the parties to reopen the evidence for purpose of further examination in chief or cross-examination. In absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the Court, the inherent power under Section 151 of the Code, subject to its limitations can be invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination. This inherent power of the Court is not affected by the express power conferred upon the Court under O.18 R.17 of the CPC to recall any witness to enable the Court to put such question to elicit any clarification. In my opinion, in this case, required opportunity was given to the petitioner plaintiff to cross-examine DW/1 Laxman Ram and after availing such opportunity by the petitioner, now application has been filed for calling of witness for confrontation but in fact it is not for the purpose of confrontation. In view of above, I am not inclined to exercise the inherent powers of this Court to quash the order impugned for th reason that matter is at final stage and opportunity to cross- examine has already been availed by the petitioner in which cross-examination upon the fact of Bank account No. 1211 of S.B.B.J, Bhinmal has already been made. Accordingly, while following the judgment rendered by Hon'ble Supreme Court in the case of Shalini Shyam Shetty reported in (2010) 8 SCC 329, the writ petition is hereby dismissed. ;