The civil revision petitioner/plaintiff has filed this revision petition as against the order dated 14.11.2008 in I.A.No.554 of 2008 in O.S.No.140 of 2005 passed by the learned District Munsif, Paramakudi, in dismissing the application filed by the petitioner under Order XVIII Rule 17 of the Code of the Civil Procedure, praying permission of the Court to recall the witness D.W.1 and to cross-examine him.
2. The trial Court while passing orders in I.A.No.554 of 2008, has opined that without filing the application to re-open the case, the filing of the application to recall alone cannot be entertained and resultantly, dismissed the application without costs.
3. It appears that D.W.1 has been examined in chief and his cross- examination is not yet over. However, this Court is informed that witness D.W.2 has been examined and his cross-examination is also over.
4. It is to be borne in mind that the power to recall a witness can be exercised by a Court of law either suo motu or at the invitation of a litigant party. The only rider for the Court is that it has to exercise its discretion in a proper way and that too with care and circumspection. It is needless to point out that the right of a Court of law to act under Order XVIII Rule 17 of the Code of Civil Procedure, is not restricted to its own motion. Furthermore, a Court of law by seeking the aid of Order XVIII Rule 17 of the Code of Civil Procedure cannot force a litigant to examine a particular person as his witness. No wonder, the power of the Court to recall a witness is purely discretionary one and in this regard, the word 'may' indicates that a discretion has been given to the trial Court. Really speaking, the power to recall a witness already examined is given to the Court and not to a party.
5. As far as the present case is concerned, admittedly, the witness D.W.1 has been examined in chief and on may occasions, D.W.1 has not been cross- examined and his evidence has been closed without his cross-examination being completed and that the trial Court has proceeded further in examining the witness D.W.2.
6. On going through the order passed by the trial Court, this Court is of the considered view that the substantial justice will have to be delivered to the parties over-riding technicalities and meritorious matters need not be thrown out at the threshold. Moreover, strictly speaking, the trial Court ought not to have numbered the recall application without an application being filed to re-open the case by the party concerned. In fact, it should have returned the recall application in the absence of re-open application being filed. However, such a course has not been resorted to by the trial Court.
7. In that view of the matter, the order passed by the trial Court in I.A.No.554 of 2008 dismissing the recall application without an application to re-open being filed, is not per se correct and this Court opines that in these matters, a liberal view can be taken by law Courts. Resultantly, the Civil Revision Petition has to be allowed to secure the ends of justice and to prevent aberration of justice.
8. In the result, the Civil Revision Petition is allowed leaving the parties to bear their own costs. The order passed in I.A.No.554 of 2008 in O.S.No.140 of 2005 by the learned District Munsif Court, Paramakudi, is set aside for the reasons ascribed in this revision. Consequently, the connected Miscellaneous Petition is closed. The trial Court is directed to restore the I.A.No.554 of 2008 filed for recalling of the witness D.W.1 and to proceed further in accordance with law after giving opportunities to both parties. The revision petitioner is directed to file a re-open application before the trial Court in the manner known to law and on such re-open application being filed, the trial Court is directed to provide opportunity to the other side and the other side is to file its counter and thereafter, the trial Court shall dispose of both the re-open and recall applications in the manner known to law as expeditiously as possible, since the suit is in the stage of hearing arguments of the parties.
rsb To The District Munsif Court, Paramakudi.