Seen. Heard. Today was fixed
for another fresh effort regarding post-trial reconciliation. However, the
plaintiff side also placed a petition for the recall of the PW-01 and the
examination of two new witnesses on her behalf. Heard both parties. As such, it
becomes decisive that such an attempt has not been successful so far. The
record is taken up for passing the necessary order. In the
present context, this is a family suit, where at the trial, the recording of
evidence at the instances of both parties has already been concluded. The
defendant side strongly objected to this petition because the plaintiffs should not be permitted to travel beyond the legal boundaries set out in section 6 of the 1985 Family Court Ordinance and not be allowed
to fill lacunas discovered during trials.
On the careful perusal of the materials on record, it also transpires that the court finds no legal hindrance to recall the PW-01 in letting her submit the mentioned documents on her support. The defendant's side will have legal leverage to make a cross-examination of her. The general legal parlance is that the court may at any stage of a suit recall any witness who has already been examined for cogent reasons, and the exercise of such power is permissible only in exceptional situations. Besides, the court understands that the power of recall is very wide but could not be exercised mechanically. Even, the court may give leave to a party to recall a witness to give evidence about a matter raised by the evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned are materials to decide the real controversy and mooting matters disclosed in a suit.
Now consider the prayer for new two witnesses to be examined afresh after the end of the trial. The first one is Mr. Hajrat Ali, who issued an heir certificate on the demise of the defendant Mokbul Hosen, the original defendant. This certificate is marked exhibited as a documentary piece of evidence with objection. The other one is one Shomser Ali, who is a clerk of an Ld. Advocate. On perusal of the depositions given by the PW 01-02 as well as the plaint, it appears that there is no single mention of the name or context regarding Mr. Shomser Ali. The bottom line is that the moot point of this suit is the validity of the marriage. So, the facts encompassing the solemnization of marriage determine the competency of any witness in this suit.
Accordingly, section 6(3) of the said Ordinance pertinently spells out that the plaint shall contain all material facts relating to the dispute and shall contain a schedule giving the names and addresses of the witnesses intended to be produced in support of the plaint, and in default, the plaintiff may, with the permission of the Court, call any witness at any later stage, if the Court considers such evidence expedient in the interest of justice. As such, it is the court’s view that the proposed witness Mr. Hajrat Ali issuing the said heir certificate could be allowed to be examined before the court, but Mr. Shomser Ali does not stand on the same footing.
Hence, it is ordered that the petition dated 07/04/2022 is allowed in part. Mr. Hajrat Ali as mentioned in the petition is hereby permitted to be examined and called for on the plaintiff’s behalf. In addition, the PW-01 is also permitted to be recalled for the purposes disclosed in the very petition only.