Page No.# 1/5 GAHC010046622018 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/72/2018 BISWA NATH SARMAH S/O. LT. MAHESWAR DEV SARMAH, R/O. BIHPURIA, WARD NO. 5, P.O. AND P.S. BIHPURIA, MOUZA, BIHPURIA, DIST. LAKHIMPUR, ASSAM. VERSUS M/S. MARBLE AND TILES SHOPPEE AND 2 ORS. A.B.C., G.S. ROAD, NEAR IDBI BANK, GUWAHATI-5, ASSAM. 2:M/S P.P. TRANSPORT CORPORATION CARGO MOVERS AND TRANSPORT CONTRACTOR HEAD OFFICE AT NEAR CENTRAL SCHOOL C-SECTOR BARAPANI NAHARLAGUN ARUNACHAL PRADESH-791110 3:OFFICER-IN-CHARGE M/S P.P. TRANSPORT CORPORATION BOOKING OFFICE AT K.C. CHOUDHURY ROAD (NEAR MAHESHWARI BHAWAN) CHETRIBARI GUWAHATI-1 ASSAM For the Petitioner(s) : Mr. S. Dutta, Sr. Advocate : Mr. S. Dutta, Advocate For the Respondent(s) : Mr. J. C. Gaur, Advocate Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH ORDER Date : 13.06.2025 Heard Mr. S. Dutta, the learned Senior counsel assisted by Mr. S. Dutta, the learned counsel appearing on behalf of the petitioner. I have also heard Mr. J. C. Gaur, the learned counsel appearing on behalf of the respondents. 2. The petitioner herein has invoked the supervisory jurisdiction of this Court to challenge the order dated 29.07.2017 passed in Money Suit No.4/2011 whereby the learned Court of the Civil Judge, Lakhimpur, North Lakhimpur had without the plaintiff adducing any further evidence fixed the suit for cross-examination of the plaintiff witnesses. A review thereagainst was filed which was registered and numbered as Misc. (J) Case No.27/2017 and the same was dismissed vide an order dated 18.11.2017. 3. The learned Senior counsel appearing on behalf of the petitioner drawing the attention of this Court to the order dated 17.03.2017 in Money Appeal No.1/2016 submitted that vide the said order, the learned District Judge, Lakhimpur at North Lakhimpur had remanded the suit back to the learned Trial Court with a direction to dispose of the suit after giving opportunity to the parties for adducing any further evidence, if required, on the additional issues i.e. Issue Nos. 4 and 5 as indicated in the said judgment. The learned Senior counsel submitted that pursuant to the said order dated 17.03.2017 when the suit upon being remanded Page No.# 3/5 back to the learned Trial Court was taken up on 29.07.2017, the plaintiff submitted that the plaintiff would not adduce any further evidence. The learned Senior counsel therefore submitted that when the plaintiff was not inclined to adduce any evidence, the question of fixing the suit for cross-examination of the plaintiff witnesses was an error in exercise of jurisdiction inasmuch as the same would amount to recalling a witness in terms with Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (for short ‘the Code’) which was not the mandate of the order dated 17.03.2017 passed in Money Appeal No.1/2016 by the learned First Appellate Court. 4. This Court upon hearing the learned Senior counsel appearing on behalf of the petitioner as well as the learned counsel for the respondent herein finds it relevant to take note of the order dated 17.03.2017 passed by the learned District Judge, Lakhimpur at North Lakhimpur in Money Appeal No.1/2016. The learned Court of the District Judge, Lakhimpur who was the First Appellate Court had vide the order dated 17.03.2017 set aside the judgment and decree passed by the learned Trial Court dated 01.06.2016 in Money Suit No.4/2011 and remanded the suit back to the learned Trial Court. Paragraph No.12 of the said order being relevant is reproduced herein under: “12. Accordingly, the impugned Judgment & Decree dtd. 01.06.2016 is set aside, and the matter is remanded to the learned trial court with a direction to dispose the suit after giving opportunity to the parties for adducing any further evidence, if required, on the additional issues i.e., Issue No.4 and Issue No.5, as indicated in earlier part of this judgment.” 5. From a perusal of the above quoted order, it appears that due Page No.# 4/5 opportunity was given to both the parties to adduce any further evidence, if so required, on the additional issue i.e. Issue Nos. 4 and 5. Upon the suit being remanded back to the learned Trial Court, the plaintiff categorically stated before the learned Trial Court that the plaintiff would not adduce any further evidence. Under such circumstances, the question of re-cross examination of the plaintiff witnesses by the defendant did not arise. 6. It is further seen that the learned Trial Court vide the order dated 29.07.2017 at first closed the plaintiff’s evidence and fixed 17.08.2017 for defendant witness affidavit if any. However, later on, the said order was changed which also in the opinion of this Court was not proper. 7. This Court is in agreement with the submission made by the learned Senior counsel for the petitioner that the power so exercised by the learned Trial Court vide the impugned order dated 29.07.2017 was akin to the power conferred under Order XVIII Rule 17 of the Code for recall of the witness which was not what the learned First Appellate Court had directed. Consequently, this Court therefore is of the opinion that the impugned order dated 29.07.2017 cannot be sustained in law for which the same is set aside and quashed. 8. This Court further takes note of that vide an order dated 16.03.2018, the further proceedings of Money Suit No.4/2011 was stayed. The said stay order stands vacated and as both the parties are duly represented, they are directed to appear before the learned Court of the Civil Judge (Senior Division), Lakhimpur at North Lakhimpur on 04.08.2025. Page No.# 5/5 9. With above observations and directions, the instant petition stands disposed off. JUDGE Comparing Assistant