Re-Examination after Final Arguments

 PLJ 1998 Karachi 328

Present: DR. GHOUS MUHAMMAD, J.

NAZIR HUSSAIN-Appellant

versus

ABDUL MANAN--Respondent

Revision Application No. 201 of 1996, dismissed in limine on 4.9.1997.

Civil Procedure Code, 1908 (V of 1908)-

—S. 115 read with O, XVIII, R. 17 & S. 151 -Suit for specific performance of contract at final stage-Application for further cross-examination allowed by trial Court while matter was pending for final arguments-Challengeto-Whether after closing their respective side by parties, can witness be recalled for further cross-examination and if so under whatcircumstances-Question of-Even in absence of any express provision atany state of trial or proceedings either on its own motion or upon requestof either party may call and recall witnesses for purpose of re-examination or cross examination if dictates of justice and equity sodemand—This can be done in exceptional and special circumstances-­Central idea being that court has to make endeavours to discover truth-­Such powers have been vested in courts under Order XVIII, Rule 17C.P.C.-Courts can press into service section 151 C.P.C. if such requestsare made at instance of parties-Held: Trial Court having jurisdiction inmatter has not committed any illegality or material irregularity bypassing impugned order-Petition having no merits, is accordinglydismissed, ~        [Pp. 330 & 331] A & B

Mr. Muhammad All, Jan, Advocate for Petitioner. Mr. Usman Ghani. Rasfiid, Advocate for Respondents. Date of hearing: 4.9.1997.

ORDER

This order will dispose of revision under section 115 C.P.C. The applicant has challenged the u.'d,: •: J.atocl 15.4.1996 passed by the learned Ill-Senior Civil Judge, Karachi West, in Civil Suit No. 904/1985 (Old No. 1711/1983.) whereby application under section 151 C.P.C., fded by the respondent for further cross-examination of the plaintiff was allowedBriefly stated the background of the matter is that the applicant filed suit for specific performance against late Abdul Man nan whose L.Rs. are now contesting the case as respondent/defendants. The prayer clause in the plaint reads as under:-

(a) decree for specific performance of the agreement of sale dated 25.2.1981 directing the defendant, to execute and sign the documents of transfer of an area of 200 sq. yds. out of plot bearing No. M-2-612 (0-694) Block 'IT Shershah Colony, Karachi.

b) to execute and sign all the documents to effect mutation in regard to the Excise & Taxation Department and in the record of other authorities which may be declared competent by the concerned authorities to maintain the record of right of the said proper   Cost, of the suit

(d) Any other further and better relief which this Hon'ble Court may deem fit and proper under the circumstances of case."

The parties led their evidence and while the matter was pending for final arguments application was submitted by the respondents under section 151 C.P.C., for recalling the applicant/plaintiff for further cross-examination. In the supporting affidavit it was stated that the learned counsel for respondent was busy before this court therefore the defendant/respondent Abdul Maunau Pasha himself cross-examined the applicant but after looking into the cet, fied copies of the statement it transpired that material cross-examination could not be done due to serious illness and engagement of the learned counsel for the defendant. The applicant filed his counter affidavit and opposed the application on the plea that he was cross-examined at great length on 27.11.1995. Ultimately the learned trial court allowed that application vide the impugned order.

I have heard learned counsel for the parties at length and have perused the record.

Learned counsel for the applicant contended that, the impugned order is illegal, prejudicial and liable to be set, aside. He further submitted that the learned trial court ought to have considered that there is no provision of law whereby the respondents may be entitled to recall the witnesses for further cross-examination once the side stood closed after effecting cross-examination at length. Lastly he submitted that the learned lower court also failed to appreciate that the application for further cross-examination had been filed only to fill up the lacuna to which the respondents are not entitled under the law. Learned counsel for the respondent supported the impugned order and submitted that the said order is just and proper.

The question which require consideration is whether after closing of their respective sides by the parties, can a witness be recalled for further cross-examination and if so under what circumstances?

In my considered opinion even in absence of any express provision the court may at any stage of trial or proceedings either at its own instance or that, of a patty recall a witness for further examination or cross-examination in the interest of justice though the party may have closed its side. This can be done in exceptional and special circumstances where the interest of justice so demand. (See Phipson on Evidence, 14th Edition page 215). The wisdom expressed by Phipson is squarely extendable to the present case. The court, either on its own motion or upon the request of either party may call and recall witnesses for the purposes of re-examination or cross-examination if the dictates of justice and equity so demand. The central idea being that the court has to make endeavours to discover the truth. Such powers have been vested in the courts under Order XVIII rule 17 CPC.The courts can press into service section 151 C.P.C. if such requests are made at the instance of the parties.

Following the above principle in the facts and circumstances of the case in my humble view the learned trial court, having jurisdiction in the matter has not committed any illegality or material irregularity by passing the impugned order. Accordingly, this revision having 110 merits is dismissed in limine alongwith M.A. No. 917/96.

(K.K.F.)                                                                        Dismissed in limine.