Smti S.Ramla Bibi v. Shri S Hamza

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/18/2024 Smti S. Ramla Bibi Vs.

Shri S. Hamza Ms. G.Mini ... for the petitioner Ms. A.S.Zinu ... for the respondent June 21, 2024 [SR] Item Nos.3 The plaintiff in a suit for declaration and injunction has come up with the present application against an order dated March 13, 2024 whereby the learned Joint Civil Judge, Senior Division, Port Blair rejected an application filed by the plaintiffs under Section 151 of the Civil Procedure Code for recall of the order closing the plaintiff's deposition and seeking to adduce evidence of further witnesses.

In the facts of the case, it transpires that previously, the plaintiff having failed to produce her witness in time, costs were imposed on the plaintiff. Even thereafter, the evidence of the plaintiff's witness was closed, which was apparently a conscious decision of the then learned advocate for the plaintiff in the court below. Thereafter, the recall application was filed. The learned Trial Judge, while rejecting the application, observed, inter alia, that no doubt, the court has the power to give an opportunity to reopen the case under Section 151 of the Code of Civil Procedure if circumstances warrant even after the evidence stage is completed, no plausible explanation was given in the petition as to why further evidence is necessary nor the name of the witness, nor any relation between the facts and the claim as to why

they intend to give further evidence, nor by way of an application a case has been made out to the effect that for just and proper adjudication of the suit, further evidence is desirable. Learned counsel for the plaintiff submits that only three further official witnesses are required to be examined which would be vital to establish the case of the plaintiff and as such opportunity be given as a last chance to the plaintiff to produce such witnesses. Learned counsel for the defendant/opposite party vehemently opposes such prayer and submits that the defendant/opposite party is 75 years old and wants to see the end of the litigation. That apart, learned counsel for the opposite party points out that the learned Trial Judge was justified in rejecting the application and gave sufficient cogent reasons in doing so.

Upon a perusal of the impugned order, I do not find any palpable illegality in the said order as the learned Trial Judge was justified in observing that the plaintiff has failed to give any cogent reason or plausible explanation as to why further witnesses should be examined and/or the particulars of such witnesses. It is to be noted that although Order 18 Rule 17A has been deleted from the Code of Civil Procedure, judicial opinion on the issue is that still the court retains power to grant leave to produce further evidence, provided however, the party seeking to so produce furnishes sufficient explanation for the same. In the present case, upon a careful consideration of the balance of convenience and inconvenience, it is clear that for the ends of doing complete justice between the parties, a last opportunity ought to be given to the plaintiff/petitioner to produce further witnesses. However, due to inconvenience caused to the defendant, further costs are required to be paid by the plaintiff and

there has to be a specific timeline for the entire exercise to be completed.

Accordingly, CO/18/2024 is disposed of by setting aside the impugned order and directing the plaintiff/petitioner to file a fresh application for recall within a week from date, disclosing therein the explanation as to why such further evidence is necessary, the details and particulars of the proposed three witnesses, and as to what would be the necessity and relevance of such evidence to the case. If such an application is filed within a week from date, the learned Trial Judge shall dispose of the same upon giving an opportunity of hearing to both sides and without being influenced by any of the observations made herein and in the impugned order within a further week thereafter.

In the event the learned Trial Judge allows such application, the learned Judge shall fix a specific limited timeline within which such evidence has to be completed by the plaintiffs, without granting any adjournment to the plaintiff on such count. It is made clear that such timeline shall not exceed a month from the date of the order being passed by the learned Trial Judge.

The above order is passed on further condition that the plaintiffs/petitioners shall pay further costs of Rs.10,000/- to the defendant/opposite party within a week from date. In the event such costs are not paid, the above order shall stand automatically recalled without any further reference to the Court.

( Sabyasachi Bhattacharyya, J. )