1. This order will dispose of revision under section 115, C.P.C. The applicant has challenged the order dated 15-4-1996 passed by the learned Bird Senior Civil Judge, Karachi West in Civil Suit No,904 of 1985 (Old No,1711 of 1983) whereby application under section 151, C.P.C., filed by the respondent for further cross-examination of the plaintiff was allowed.
2. Briefly stated the background of the matter is that the applicant filed suit for specific performance against late Abdul Mannan whose L.Rs, are now contesting the case as respondent/defendants.
3. The prayer clause in the plaint reads as under:-- "(a) Decree for specific performance of the agreement of sale dated 25-2-1981 directing the defendant to execute and sign the documents of transfer of an area of 200 sq. yds. out of Plot bearing No,M-2-612 (D-694) Block 'D' Shershah Colony, Karachi.
4. (b)To execute and sign all the documents to effect mutation in regard to the Excise and Taxation Department and in the record of other Authorities which may be declared competent by the concerned authorities to maintain the record of right of the said property.
5. (c)Cost of the suit.
6. (d)Any other further and better relief which this Hon'ble Court may deem fit and proper under the circumstances of case."
7. The parties led their evidence and while the matter was pending for final arguments application was submitted by the respondents under section 151, C.P.C., for recalling the applicant/plaintiff for further cross-examination. In the supporting affidavit it was stated that the learned counsel for respondent was busy before this Court, therefore, the defendant/respondent Abdul Mannan Pasha himself cross-examined the applicant but after looking into the certified copies of the statement it transpired that material cross-examination could not be done due to serious illness and engagement of the learned counsel for the defendant. The applicant filed his counter-affidavit and opposed the application on the plea that he was cross-examined at great length on 27-11-1995.
8. Ultimately the learned trial Court allowed that application vide the impugned order.
9. I have heard learned counsel for the parties at length and have perused the record.
10. Learned counsel for the applicant contended that the impugned order is illegal, prejudicial and liable to be set aside. He further submitted that the learned trial Court ought to have considered that there is no provision of law whereby the respondents may be entitled to recall the witnesses for further cross-examination once the side stood closed after effecting cross-examination at length. Lastly he submitted that the learned lower Court also failed to appreciate that the application for further cross-examination had been filed only to fill up the lacuna to which the respondents are not entitled under the law. Learned counsel for the respondent supported the impugned order and submitted that the said order is just and proper.
11. The question which requires consideration is whether after closing of their respective sides by the parties, can a witness be recalled for further cross-examination and if so, under what circumstances?
12. In my considered opinion even in the absence of any express provision the Court may at any stage of trial or proceedings either at its own instance or that of a party recall a witness for further examination or cross-examination in the interest of justice though the party may have closed its side. This can be done in exceptional and special circumstances where the interest of justice so demands. (See Phipson on Evidence, 14th Edition, page 215) The wisdom expressed by Phipson is squarely extendable to the present case. The Court either on its own motion or upon the request of either party may call or recall witnesses for the purposes of re-examination or cross-examination if the dictates of justice and equity so demand. The central idea being that the Court has to make endeavours to discover the truth. Such powers have been vested in the Courts under Order XVIII, rule 17, C.P.C. The Courts can press into service section 151, C.P.C. if such requests are made at the instance of the parties.
13. Following the above principle in the facts and circumstances of the case in my humble view the learned Trial Court having jurisdiction in the matter has not committed any illegality or material irregularity by passing the impugned order. Accordingly, this revision having no merits is dismissed in limine, alongwith Miscellaneous Application No,917 of 1996.