S.Thangammal v. Anthoney

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/2/2024 S. Thangammal Vs.

Anthoney Mr. Gopala Binnu Kumar ... for the petitioner January 10, 2024 [SR] Item No.19 The order impugned dated November 18, 2023 has been passed by the learned Civil Judge, Junior Division, Additional Court, South Andaman District, Port Blair in Other Suit No. 65 of 2018.

By the order impugned, the learned Court allowed an application for recalling PW-1 and PW-2 for crossexamination. Such application was filed by the defendant. The Court passed such direction upon payment of cost. The suit is for declaration of title, mandatory injunction for demolition of an illegal construction and recovery of khas possession. After completion of the cross-examination of DW1, an application was filed for recalling the PW-1 and PW-2. Mr. Kumar, submits that the only ground pressed for recalling of the PW-1 and PW-2, was change of lawyer. This could not be a ground for allowing the aforementioned application.

The learned Court was of the view that the schedule of questions proposed to be put to the PW-1 i.e. the plaintiff, included questions with regard to the quantum of land purchased by the plaintiff as per the sale deed; who were the

recorded tenants in the particular suit property; whether there was any boundary wall between the suit property and the adjacent plot; whether the plaintiff had obtained any sanction of the building plan from the municipal authority before constructions etc. Some other questions with regard to the demarcation of the property and the boundary, were also incorporated in the schedule.

The Court had elaborately dealt with each and every question and the reasons behind such questions. According to the Court, the situation justified recalling of the witnesses. According to the Court, the legislative intent for incorporation of Order 18 Rule 17 of the Code of Civil Procedure was to empower the Court to recall any examined witnesses at any stage of the suit. The said provision of law had a definite legislative intent that is, to ensure comprehensive, conclusive, complete and effective adjudication of the lis between the parties.

Under such circumstances, upon examining the nature and character of the suit and the nature and character of the reliefs prayed, the Court found that there was no attempt on the part of the defendant to harass the plaintiff or to prolong the litigation. The Court found that the contentions of defendant that the earlier counsel did not put proper questions during the cross-examination of the examined witnesses, was a justifiable ground for recalling the witnesses. As regards PW-2, who was an official witness, the defendant wanted to put question with regard to TPB case records. For the delay, cost had been imposed. The plaintiff has also been given opportunity of reexamination.

Under such circumstances, this Court does not find that the learned Court had either acted illegally or with material irregularity in passing the order impugned. However, it is made clear that the cross-examination of the PW-1 and PW-2 shall be, as per the direction of the learned Court and restricted to the questions and should be completed within a single date to be fixed by the Court. Learned Court then shall proceed with the suit and deliver the judgment not beyond five months from the completion of the cross-examination of PW-1 and PW-2.

Accordingly, revisional application is disposed of. ( Shampa Sarkar, J. )