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This case comes from the Sindh High Court and deals with a civil dispute originally about specific performance of a property sale agreement. During the trial, after both sides had presented their evidence and the case was pending final arguments, the defendant asked the trial court for permission to further cross-examine the plaintiff, explaining that his lawyer had been unavailable due to illness and other court commitments, so the earlier cross-examination had been incomplete. The trial court allowed this request. The plaintiff challenged this decision before the High Court, arguing that there was no legal basis to reopen cross-examination once both parties had closed their respective sides, and that the request was simply an attempt to cover gaps in the defendant's case.
The High Court disagreed and dismissed the challenge. It held that even without an explicit law permitting it, courts have inherent power to recall witnesses for further examination or cross-examination at any stage of proceedings, whether on their own initiative or at a party's request, if justice and fairness require it. This power exists under Order XVIII Rule 17 of the Civil Procedure Code, and courts may also use Section 151 CPC when parties make such requests. The guiding principle is that courts must strive to uncover the truth rather than rigidly enforce procedural closure.
This judgment matters because it clarifies that procedural technicalities should not prevent courts from ensuring a fair and complete examination of evidence, especially in exceptional circumstances.
یہ مقدمہ سندھ ہائی کورٹ سے متعلق ہے اور ایک ایسے دیوانی تنازعے پر مبنی ہے جس کی بنیاد جائیداد کی فروخت کے معاہدے کی مخصوص انجام دہی (اسپیسیفک پرفارمنس) کا دعویٰ تھا۔ ٹرائل کے دوران، جب فریقین اپنے اپنے شواہد پیش کر چکے تھے اور معاملہ حتمی دلائل کے مرحلے میں زیرِ التوا تھا، مدعا علیہ نے ٹرائل کورٹ سے استدعا کی کہ اسے مدعی کے دوبارہ جرح (کراس ایگزامینیشن) کرنے کی اجازت دی جائے۔ اس نے وضاحت کی کہ اس کا وکیل بیماری اور دیگر عدالتی مصروفیات کے باعث پیش نہیں ہو سکا تھا، جس کی وجہ سے پہلے کی جانے والی جرح نامکمل رہ گئی تھی۔ ٹرائل کورٹ نے یہ درخواست منظور کر لی۔ مدعی نے اس فیصلے کو ہائی کورٹ میں چیلنج کیا اور موقف اختیار کیا کہ جب دونوں فریق اپنا اپنا حصہ بند کر چکے ہوں تو جرح کو دوبارہ کھولنے کی کوئی قانونی بنیاد نہیں بنتی، اور یہ درخواست دراصل مدعا علیہ کے مقدمے میں موجود خامیوں کو چھپانے کی ایک کو
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PLJ 1998 Karachi 328 Present: DR. GHOUS MUHAMMAD, J. NAZIR HUSSAIN-Appellant versus ABDUL MANAN--Respondent Revision Application No. 201 of 1996, dismissed in limine on 4.9.1997. Civil Procedure Code, 1908 (V of 1908)- —S. 115 read with O, XVIII, R. 17 & S. 151 -Suit for specific performance of contract at final stage-Application for further cross-examination allowed by trial Court while matter was pending for final arguments-Challenge to-Whether after closing their respective side by parties, can witness be recalled for further cross-examination and if so under what circumstances-Question of-Even in absence of any express provision at any state of trial or proceedings either on its own motion or upon request of either party may call and recall witnesses for purpose of re- examination or cross examination if dictates of justice and equity so demand—This can be done in exceptional and special circumstances- Central idea being that court has to make endeavours to discover truth- Such powers have been vested in courts under Order XVIII, Rule 17 C.P.C.-Courts can press into service section 151 C.P.C. if such requests are made at instance of parties-Held: Trial Court having jurisdiction in matter has not committed any illegality or material irregularity by passing impugned order-Petition having no merits, is accordingly dismissed, ~ [Pp. 330 & 331] A & B Mr. Muhammad All, Jan, Advocate for Petitioner. Mr. Usman Ghani. Rasfiid, Advocate for Respondents. Date of hearing: 4.9.1997. ORDER This order will dispose of revision under section 115 C.P.C. The applicant has challenged the u.'d,: •: J.atocl 15.4.1996 passed by the learned Ill- Senior Civil Judge, Karachi West, in Civil Suit No. 904/1985 (Old No. 1711/1983.) whereby application under section 151 C.P.C., fded by the respondent for further cross-examination of the plaintiff was allowed Briefly stated the background of the matter is that the applicant filed suit for specific performance against late Abdul Man nan whose L.Rs. are now contesting the case as respondent/defendants. 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 (0-694) Block 'IT Shershah Colony, Karachi. b) to execute and sign all the documents to effect mutation in regard to the Excise & 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 proper Cost, of the suit (d) Any other further and better relief which this Hon'ble Court may deem fit and proper under the circumstances of case." 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 Maunau Pasha himself cross-examined the applicant but after looking into the cet, fied 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. Ultimately the learned trial court allowed that application vide the impugned order. I have heard learned counsel for the parties at length and have perused the record. 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. The question which require 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? In my considered opinion even in absence of any express provision the court may at any stage of trial or proceedings either at its own instance or that, of a patty 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 demand. (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 and 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 CPC. The courts can press into service section 151 C.P.C. if such requests are made at the instance of the parties. 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 110 merits is dismissed in limine alongwith M.A. No. 917/96. (K.K.F.) Dismissed in limine.