(Civil)
Syed Mahmud Hossain J
Md Imman Ali J
Md Anwarul Haque J
Mortuz Ali Khalifa
………..Appellant
vs
Jobeda @ Kalu Bibi and others……….
…… Respondents*
Judgment
January 29th, 2014.
Code of Civil Procedure (V of 1908)
Order XVIII, rule 17
Court may recall and examine witness-It is a cardinal principle of law that every party to a litigation must be given opportunity to place his case with relevant evidence. A party to the suit may be given the opportunity to call witnesses and produce any evidence at any time during the trial. The trial does not finish until pronouncement of judgment. (5)
Madhu Malati Chowdhury Barua, Advocate-on-Record on behalf of Md Nawab Ali, Advocate-on-Record-For the Appellant.
None Represented-For Respondents.
Judgment
Md Imman Ali J: This civil appeal by leave is directed against order dated 7-12-1999 passed by a Single Bench of the High Court Division in Civil Order No. 5046 of 1999 summarily rejecting the revisional application filed by the appellant.
2. Mortuz Ali Khalifa, appellant herein, was defendant No. 14 in Title Suit No. 101 of 1997, which was instituted by Jobeda @ Kalu Bibi and others in the court of Senior Assistant Judge, Naleiti, Jhalakati for declaration of title and partition in respect of 1.28 1/2 acres of land. The appellant belatedly filed written statement, which was allowed. He also filed an application for recalling the plaintiffs’ witnesses for cross-examination, which was rejected. He filed two subsequent applications for the same purpose, which were also rejected. Against the earlier order, the appellant then filed an application under section 115(1) of the Code of Civil Procedure which was numbered as Civil Order No. 5046 of 1999. By the impugned judgment and order the High Court Division summarily rejected the revisional application. Hence, the appellant filed Civil Petition for Leave to Appeal No. 129 of 2007. Leave was granted by this Division to consider whether “while the learned court below allowed the petitioner to file written statement and accordingly he filed the same so, he accrued the legal right for cross-examining the plaintiffs’ witnesses, but the learned court below without considering the aforesaid legal position most illegally rejected the prayer for recalling the witnesses which is an error of law resulting error in the decision occasioning failure of Justice” .
3. Mrs Madhu Malati Chowdhury Barua learned Advocate-on-Record appearing on behalf of the appellant made submissions supporting the ground upon which leave was granted.
4. The High Court Division noted that while rejecting the appellant’s application for recalling the plaintiffs’ witnesses for cross-examination the learned Judge afforded an opportunity to him to produce witnesses in support of his case made out in the written statement, but he did not avail that opportunity. After that, the hearing was concluded and the suit was posted for hearing arguments. For those reasons the High Court Division did not find any illegality or error of law warranting any interference.
5. It is a cardinal principle of law that every party to a litigation must be given opportunity to place his case with relevant evidence. Even though the defendant No. 14, appellant herein, appeared in the case at a belated stage, the learned judge allowed him to file his written statement. He can only be expected to call relevant witnesses after he has been able to challenge the veracity of the plaintiffs’ witnesses by cross-examination.
It is also an established principle and a requirement of law that a party to the suit may be given the opportunity to call witnesses and produce any evidence at any time during the trial. The trial does not finish until pronouncement of judgment. Therefore, we are of the view that both the trial court and the High Court Division seriously erred in not allowing the defendant No. 14 to recall the plaintiffs’ witnesses for cross-examination.
6. We find merit in this appeal, which is accordingly allowed, without however any order as to costs.
7. As the matter has been long delayed, we hereby direct the trial court to conclude the, trial expeditiously, preferably within 6 months of receiving a copy of this judgment.
