Allowed

Om Parkash Dua v. Surinder Aggarwal and Anr.

Punjab & Haryana HC3 Feb 2012CR/6500/2011

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana allowed a revision petition against an impugned order dismissing an application to recall a tenant's witness (AW2) for further cross-examination. The Court held that Order 18 Rule 17 CPC empowers parties to file applications for witness recall. It set aside the lower order, noting AW2 had undisclosed assets and business activities revealed post-testimony.

What did the court decide?

The revision petition is allowed and the impugned order dated 15.09.2011 declining the application to recall AW2 is set aside.

Om Parkash Dua Vs Surinder Aggarwal and Anr. — Landlord and Tenant | Punjab & Haryana HC (2012)

¶1

CR-6500-2011 (O&M)

¶2

[ 1 ]

¶3

::::::::

¶4

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

¶5

CR-6500-2011 (O&M) Date of decision:03.02.2012 Om Parkash Dua ...Petitioner Versus Surinder Aggarwal and another ...Respondents

¶6

CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN

¶7

Present: Mr. Pankaj Gupta, Advocate, for the petitioner. Mr. B.R.Gupta, Advocate, for the respondents. *****

¶8

RAKESH KUMAR JAIN, J.

¶9

This revision petition is directed against order dated 15.09.2011 passed by the learned Rent Controller, Malerkotla by which an application filed by the tenant under Order 18 Rule 17 of the Code of Civil Procedure, 1908 [for short “CPC”] for recalling of AW2 for further cross-examination has been declined.

¶10

In brief, the petitioner was inducted as a tenant in the year 1963 in the shop situated at Loha Bazar, Malerkotla by Prem Chand, father of Surinder Aggarwal (respondent No.1 herein). On 03.03.2006, respondent No.1 filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] in order to seek eviction of the petitioner from the demised premises on the grounds of non-payment of rent and personal necessity to settle his adult son, namely, Sachin Jain, in business who was stated to be sitting idle.

¶11

While leading evidence, respondent No.1 examined Sachin Jain as AW2 who was cross-examined on 08.04.2008. Thereafter, the petitioner came to know that he is not sitting idly but has got 4 independent bank

¶12

[ 2 ]

¶13

CR-6500-2011 (O&M)

¶14

::::::::

¶15

accounts in which daily transactions are being carried out for the business purposes. Out of the 4 bank accounts, 3 bank accounts are with Punjab National Bank, Moti Bazar, Malerkotla and one is with Axis Bank, Malerkotla. On 15.03.2010, the petitioner filed an application for summoning the Managers of the Punjab National Bank, Moti Bazar, Malerkotla and Axis Bank, Malerkotla along with the Account Opening Form and Accounts Statement for the accounts of Sachin Jain which was allowed and Rahul Pahuja, Branch Development Officer of the Axis Bank, Malerkotla filed an affidavit dated 16.08.2010 in which he has disclosed the account number of Sachin Jain which was opened on 20.05.2008 after his cross-examination on 08.04.2008. Similarly, Paramjit Singh, Computer Operator of Punjab National Bank, Moti Bazar, Malerkotla also filed his affidavit dated 11.11.2010 in which he disclosed all the 3 account numbers of Sachin Jain, out of which one account was opened on 02.09.2009 after his cross-examination on 08.04.2008. The petitioner also came to know that Sachin Jain is doing his independent business under the name and style of M/s S.N.Traders at Surjeet Palace Road, Dhandari Kalan, Ludhiana.

¶16

In view of the aforesaid revelations, the petitioner moved an application under Order 18 Rule 17 CPC for recalling of Sachin Jain for further cross-examination which was contested by the respondent No.1 and vide the impugned order dated 15.09.2011, the said application was dismissed.

¶17

Learned counsel for the petitioner has submitted that the application has been dismissed by the learned Rent Controller primarily on two grounds; i) that the provisions of Order 18 Rule 17 CPC do not apply on an application made by either of the parties as it is the inherent jurisdiction of the Court to suo moto recall any witness, and ii) that the petitioner had failed to show that the alleged bank accounts of Sachin Jain were in existence at the time when he was cross-examined on 08.04.2008.

¶18

While assailing the first ground of rejection, learned counsel for the petitioner has relied upon a decision of the Supreme Court in the case of K.K. Velusamy v. N. Palanisamy, 2011(2) R.C.R. (Civil) 875 and a single Bench judgment of the Madras High Court in the case of S.S.S. Durai v. S.A. Samuthira Pandian, 1998(-) LW 778. In respect of the second ground of declining the prayer made by the petitioner, it is submitted that two bank

¶19

CR-6500-2011 (O&M)

¶20

[ 3 ]

¶21

::::::::

¶22

accounts were in existence before cross-examination of AW2 but one account in the Axis Bank has been opened on 20.05.2008 and one account in the Punjab National Bank has been opened on 02.09.2009, after crossexamination of AW2 on 08.04.2008. He further submitted that it was also not in the knowledge of the petitioner that AW2 is doing the business under the name and style of M/s S.N. Traders and is well settled as against the case set up by the respondent No.1 that he is sitting idly.

¶23

In reply, learned counsel for the respondent No.1 has argued that there is no error in the impugned order because the bank accounts of AW2 Sachin Jain are all saving accounts and are not current accounts which can be allegedly regularly used for the purpose of business and that such type of application cannot be allowed to fill up the lacuna in the case of the petitioner.

¶24

I have heard both the learned counsel for the parties and perused the record with their able assistance.

¶25

In this case, the primary question is as to “whether an application under Order 18 Rule 17 of CPC can be filed by a party or this power can be used only by the Court suo moto”? In this regard, it is worthwhile to refer to Order 18 Rule 17 of CPC, which is as under:

¶26

“17. Court may recall and examine witness.--

¶27

The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.”

¶28

In K.K. Velusamy's case (supra), the Supreme Court has categorically held that “ the power to recall any witness under Order 18 Rule 17 can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit requesting the Court to exercise the said power”. In S.S.S. Durai's case (supra), the main question was as to “whether the trial Court has got powers to invoke Order 18 Rule 17 to recall the witness at the instance of the defendant for cross-examination”? The answer to the question was in affirmative that a witness can be recalled for cross-examination under Order 18 Rule 17 CPC on the application of either of the parties to the suit.

¶29

In view thereof, the first question, on which the application was dismissed by the learned Rent Controller, is decided in favour of the

¶30

CR-6500-2011 (O&M)

[ 4 ]

::::::::

petitioner.

In respect of the second question, it is worthwhile to mention that out of 4 bank accounts, 2 bank accounts came into existence after the cross-examination of AW2 on 08.04.2008 and this fact was also not within the knowledge of the petitioner that AW2 is doing the business under the name and style of M/s S.N. Traders, therefore, when the eviction petition has been filed specially on the ground of personal necessity to settle AW2, who is stated to be sitting idly, the evidence which is sought to be led by the petitioner assumes importance. Hence, on merit also, I do not agree with the reason assigned by the learned Rent Controller in declining the prayer made by the petitioner.

¶35

In view of the aforesaid discussion, the present revision petition is hereby allowed and the impugned order is set aside.

¶36

February 03, 2012 (RAKESH KUMAR JAIN) vinod* JUDGE

Om Parkash Dua v. Surinder Aggarwal and Anr.

Case brief

What is this about?

What did the court decide?

Om Parkash Dua v. Surinder Aggarwal and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Jagdish Parshad Vs Roshan Lal

Babli Vs State of Haryana and Anr.

Prtc Vs Jasvinder Kumar & Anr.

Sanjay Jain & Ors. Vs Vijay Kumar Gupta

Harmandeep Gaur Vs Rajan and Ors.

Sukhwant Singh Vs Gurdial Singh