1. Order in a high valuation suit and counter-claim tried at Talcher is impugned in this Civil Revision. Earlier this Court had fixed time for disposal of the suit which could not be materialised because counterclaim could not be made ready as stated before me. In such circumstances, trial court gave importance for hearing of the suit expeditiously. After witnesses for plaintiff were examined, on 6th July, 1992, D.W 1 was examined in-chief on behalf of the defendant. He is the Chief Commercial Manager, a high officer of defendant Company. On 7th, this witness was cross-examined at length covering almost the entire day, as reported to me. After completion of cross-examination, his evidence was closed and defendant was to examine further witnesses next day. An application was filed on the 8th stating that P.W 1 may be recalled for further cross-examination as some questions could not be put being left out though they are material both for the purpose of the suit as well as the counter-claim. Trial court did not accommodate the plaintiff. Hence, this Civil Revision was filed against the order refusing the prayer.
2. Mr. Palit, learned counsel for the petitioner submitted that the witness is very important witness not only for the purpose of the case of the plaintiff but also in support of the counter-claim. It is true that extensive cross-examination covering about 7 pages was made. However, on scrutiny it was found that some important questions have been left out. Court ought to have exercised the discretion to recall the witness when at the earliest opportunity in the next morning itself prayer was made to recall the witness.
3. Mr. B.B Ratho, learned counsel for the defendant, submitted that even plaintiff was represented by an eminent counsel who is an expert in cross-examination and there was no scope for any omission specially when a witness was cross-examined at length for the entire day, prayer on the next morning for further cross-examination is only an afterthought which ought not to be permitted. Mr. Ratho further submitted that it was open to plaintiff not to close the cross-examination in the last hour but to keep it for continuing the next day so that plaintiff could have verified in the night and ask the question next day. When the witness had already left for Bombay, trial court rightly rejected the prayer of plaintiff. Such recalling would defeat the anxiety of this Court as well as of the trial court for early disposal which is a public policy and would be costly to the defendant since absence of such high official would affect the functioning of the company. Since recalling the witness would be filling up of the lacuna of plaintiff, such prayer is also not to be accepted.
4. Plaintiff ought to have been very careful in cross-examining the witness. Mr. Ratho is correct that in cases where the witness is cross-examined for long hours till end of the days functioning of the court, party cross-examining should request the court not to close the evidence of the witness that day so that the witness would be available on the next day for further cross-examination, if any. When there is a gap between two days of trial for any reason, question would be different. It would depend on the difficulty of the witness to stay back and nature of the case. Submission of Mr. Palit that cross-examination continued for sometime beyond court hours indicates that court was accommodating the parties to close the evidence so that the witness can go back. In this background if plaintiff would not have made the prayer for recalling the witness, I would not have considered the question of interfering with the discretion of trial court and would have outright rejected the petition. In such case, an inference was available to be drawn that such prayer was an after thought. A party which is casual in conducting the case is not to be assisted by court. When, however, as in this case, on the next morning hour prayer to recall the witness was made, stronger circumstances would be necessary to draw an inference of after thought. No doubt, the conducting lawyer should have been more vigilant. A party should not be allowed to suffer because its lawyer was not more vigilant. I cannot come to conclusion that learned counsel for plaintiff was negligent. In such circumstances, it cannot be said to be filling up lacuna of a party. Even if such would be a possible inference, circumstances may also permit to assist a party for proper adjudication. This is such a case.
5. Whether a prayer to recall a witness would be accepted would depend on facts and circumstances of each case and the principle cannot be put in a strait-jacket formula. Presiding Officer with his judicial experience shall exercise the discretion with the ultimate aim that parties get full opportunity to present their cases and the court is able to adjudicate properly. I am inclined to hold that in the present case when inconvenience of the defendant and the plaintiff are compared, the balance would be tilt in favour of the plaintiff to allow the recalling witness than rejecting it. I am conscious that defendant has produced his own witness and would have to meet huge expenses if such a direction is given. In that view of the matter, once I am inclined to give opportunity to the plaintiff to cross-examine D.W 1 by recalling him, defendant is entitled to costs for producing the witness.
6. What would be the cost, is the next question for consideration. D.W 1 is the Chief Marketing Officer of a company like defendant. It requires no material to come to conclusion that he has to travel by air from Bombay to Bhubaneswar. He is entitled to stay in Starred hotel while out of Bombay at the cost of the company. Stay and fooding in such hotels is very costly. He is to commute the distance between Bhaubaneswar and Talcher by car to be hired. Company has to bear his salary for the days of absence. It would not be less than Rs. 20,000/- though the figure appears to be high. Realities of life are to be kept in mind. When plaintiff which is not entitled to the recall of witness and is getting a benefit, it has to bear the costs specially when high stake is involved in the suit. This amount shall not be cost of litigation in any case.
7. It is desirable that a date should be fixed for plaintiff to deposit the amount in court. In view of the fact that the suit is part-heard, plaintiff shall deposit the amount on or before 31-7-1992. On deposit of the amount, trial court shall call upon the defendant to give the date on which it will produce the witness for further cross-examination by plaintiff which shall not be later than 7th August, 1992. Plaintiff shall not be permitted to adduce any further witness since it has closed the evidence. If, on account of further cross-examination of D.W 1 it is required for the defendant to examine further witnesses or produce further documents, opportunity shall be given for that purpose.
8. In result, the Civil Revision is allowed subject to the aforesaid condition. There shall be no order as to costs.
Order accordingly.
Comments