Petitioner filed a suit for recovery of Rs.1190000/- by filing a written statement and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE AMIT BANSAL, in the matter VANEETA KHANNA & ORS. V. VIKRAM SEHGAL [CM(M) 520/2021], dealt with an issue mentioned above.
The petition was filed under Article 226 of the Constitution of India, After hearing the parties, judgment was reserved in the matter on 17th September 2021. Both parties have filed written submissions that have been taken on record.
The present petition arises was a suit for recovery of Rs.11,90,000/-. The said suit was contested by the petitioners by filing a written statement, wherein it was stated that the alleged Will dated 20th June 2006 of the petitioner no.1 and respondent’s mother was forged and fabricated and the alleged Will dated 26th March 2007 of petitioner no.1 and respondent’s father was executed under force and coercion. It was mentioned that On 15th September 2016 affidavit of evidence was filed on behalf of the petitioners. However, to date, the cross-examination of the petitioner’s witnesses has not commenced.
As regards the impugned order dated 16th April 2021, dismissing the application of the petitioners filed under Section 151, CPC, for placing on CM(M) 520/2021 record complaint against their previous counsel, no submissions were made on behalf of the petitioners impugning the said order.
The petitioner has placed on record a subsequent order dated 27th August 2021 passed by the Trial Court, whereby the applications filed by the petitioners under Order 7 Rule 14, CPC, for filing list of additional witnesses and application under Order 16 Rule 1 and 3, CPC for summoning additional witnesses, have been partly allowed by the Trial Court. Vide the order 27th August 2021, few witnesses were taken on record.
After hearing the rival contentions and perused the impugned order passed by the Trial Court and the written submissions filed by both the parties. The Trial Court dismissed the aforesaid application filed on behalf of the petitioners under Order 18 Rule 17 of CPC by observing few facts. It was mentioned that they have examined the impugned order passed by the Trial Court. Conducting a cross-examination in a suit is a specialized job. It was only with experience that a counsel develops skills for cross-examination. Different Advocates may conduct cross-examination differently and it may not be correct to say that which is the correct approach and which is not. Hence, at the mere behest of a dissatisfied litigant, it cannot be taken that the advocate has not conducted proper cross-examination of the witnesses.
Therefore, the impugned order has correctly noted that the litigant is the principal who is bound by all acts of his Advocate, who acts as his agent, so long as the aforesaid acts are conducted in the course of his professional dutyIt was also a matter of record that the petitioner no.1 was herself present in Court when the cross-examination was conducted and that all the three witnesses were exhaustively cross-examined by the advocate appearing on behalf of the petitioners. It was mentioned that t petitioner no.1 has been appearing herself throughout the proceedings and she is well aware of the facts and circumstances of the case as was stated in the affidavit filed in support of the applications.
The fact that a similar application filed on behalf of the petitioners was dismissed by the Trial Court vide order dated 20th July 2016 should have been disclosed in the present application. After a lapse of three years, the petitioners cannot be allowed to fill in lacuna in their case by seeking to recall the aforesaid witnesses. Reference in this regard may be made to the decision of the Hon’ble Supreme Court in K.K. Velusamy Vs. N. Palanisamy (2011) [11 SCC 275].
The court perused the facts and argument’s presented, it thought that- “Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions. Therefore, there is no infirmity in any of the impugned orders passed by the Trial Court that warrant the interference of this Court in the exercise of jurisdiction under Article 227 of the Constitution of India, Dismissed”.
Judgment Reviewed by: Mandira BS