'Belated Attempt to Fill Gaps': Calcutta High Court Denies Recall Plea, Affirms Procedural Discipline in Trial Proceedings
Safiya Malik
The Calcutta High Court has dismissed an application filed by the defendant in a property dispute case seeking to recall a witness for further cross-examination. The court upheld the trial court’s judgement, stating that the recall request was not only belated but also an attempt to reintroduce issues that had already been adjudicated at various judicial levels, including the Supreme Court.
The dispute pertains to a suit filed by the plaintiff seeking recovery of possession of a commercial property. The plaintiff contended that the defendant was occupying the premises under an unregistered lease agreement and was, therefore, liable to be evicted. The defendant, however, argued that a lease agreement had been duly executed on March 17, 2005, and presented for registration before the registering authority. Due to delays in assessment of stamp duty by the authority, the lease was ultimately registered on January 8, 2018. The defendant asserted that the effect of such registration must be considered in the proceedings, as it would impact the maintainability of the suit.
The plaintiff objected to the defendant’s reliance on the registration, arguing that the fact of the lease’s registration had been deliberately omitted from the original pleadings and written statement. Attempts to introduce this fact later by amending the written statement were denied by the trial court, and the defendant’s appeals on this issue were dismissed both by the High Court and the Supreme Court. Subsequently, the defendant filed an application under Section 151 of the Code of Civil Procedure, 1908, seeking to recall PW1 for further cross-examination. The trial court rejected this request, stating that it amounted to an attempt to fill gaps in cross-examination rather than serving any legitimate legal purpose.
The defendant submitted that the recall of PW1 was necessary to question him regarding the effect of the lease’s registration, which was central to the case. It was argued that the omission of such questions during initial cross-examination was inadvertent and that the defendant should be allowed to rectify this oversight in the interest of justice. Counsel for the defendant contended that the power of recall under Section 151 CPC was discretionary and could be exercised in exceptional cases, particularly when a vital fact had not been properly examined.
Conversely, the plaintiff opposed the recall, contending that allowing further cross-examination at this stage would be prejudicial and lead to unnecessary delays. It was argued that the defendant had already exhausted all avenues to introduce the fact of registration into the pleadings but had failed to secure relief from any forum, including the Supreme Court. The plaintiff further asserted that the questions the defendant sought to put to PW1 had, in fact, already been asked during the initial cross-examination.
The High Court examined whether the recall application was justified under Section 151 CPC. The court noted that while procedural law allows for recall of witnesses in exceptional cases, it should not be used to circumvent procedural restrictions or reopen settled issues.
The court stated: "The application under Section 151 of the Code of Civil Procedure was filed after the cross-examination of PW1 had been closed. The questions which have been elaborately mentioned in the said application... could have been put at the relevant time when the PW1 was already on the docks.”
The judgment also noted that allowing recall at such a belated stage would contradict the legislative intent behind procedural amendments aimed at expediting trials. It recorded: "The amended provision of the Code of Civil Procedure contemplates expeditious trial and expects the trial court to hear the arguments immediately after the completion of evidence and then proceed to deliver judgment."
The court referenced K.K. Vellusamy v. N. Palaanisamy, in which the Supreme Court held that recall of witnesses should only be permitted in exceptional circumstances. The High Court, however, found that the present case did not meet this threshold.
A crucial consideration was whether the questions the defendant sought to ask PW1 had already been addressed. The court observed: "Upon going through the questions which the petitioner wanted to put again to the PW1 on recall, this court is of the view that similar questions were already put to the PW1 in cross-examination directly as suggestions."
Further, the judgment noted that the defendant had waited nearly three years after the completion of cross-examination before filing the recall application. "There is no explanation as to why the petitioner waited for almost three years to file the said application. The deed of lease was registered earlier, much before the closure of evidence of the PW1, and the questions could have been put earlier."
The court also examined the actual cross-examination of PW1 and found that the witness had already answered questions regarding the lease’s registration. Extracting from the trial record, the court noted:
"The agreement was presented before the registration authority but the defendant was not willing to give the stamp duty for which the agreement was not registered. I cannot recollect the date on which the agreement was presented before the registration authority... Not a fact that the lease agreement dated 17.03.2005 between the plaintiff and the defendant was duly registered before the registering authority."
Thus, the High Court concluded that the recall application had no merit, as the essential questions had already been asked and answered during the initial cross-examination.
The High Court stated that there was no valid justification to interfere with the trial court’s decision. It directed that the trial should proceed without further interruptions. The judgment stated:
"The revisional application is disposed of without interference with the order of the learned trial judge and with the observations made hereinabove."
Advocates who appeared:
For the petitioner : Mr. Bhaskar Ghosh, Sr. Advocate, Mr. Rwitendra Banerjee, Mr. Usha Doshi
For the respondent : Mr. Aniruddha Chatterjee, Sr. Adv, Mr. Tanmoy Mukherjee, Mr. Neelesh Chowdhury,
Ms. Anuradha Poddar,
Case Title: Tirupati Vinimoy Private Limited v. Karnani Properties Limited
Case Number: C.O.12 of 2024
Bench: Justice Shampa Sarkar
[Read/Download order]
