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Basic principles to be followed for recalling of witness

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 1307 of 2016

Decided On: 29.06.2017

Shewalkar Developers Ltd.
Vs.
Sidarth Sinha and Ors.

Hon’ble Judges/Coram: Indira Jain, J.
Citation: 2018(1) MHLJ 346

1. Rule. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the parties. This petition takes an exception to the order dated 30-10-2015 passed below Exh. 178 by learned Joint Civil Judge Senior Division, Nagpur in Special Civil Suit No. 543/1999.

2. The facts giving rise to petition may be stated in brief as under :

I. Petitioner is the original plaintiff. Suit for specific performance of contract came to be filed before learned Civil Judge Senior Division, Nagpur. Respondents are the defendants in suit. On 21-9-2013, PW-1 Madhukar Ukey was cross-examined by defendants 1 to 3. Defendants 4 to 6 remained absent. None represented them and, therefore, order of ‘no cross’ was passed by the trial Court.

II. Thereafter an application (Exh. 152) was presented by defendants 6 and 7 for setting aside ‘no cross’ order. The same was allowed. On the same day, a pursis came to be filed on behalf of defendants 6 and 7 adopting cross-examination of witness by defendants 1 to 3.

III. After filing pursis, another application (Exh. 178) was filed by defendants 6 and 7 for recalling PW-1 Madhukar Ukey for cross-examination. The main ground raised in application was that pursis was passed without seeking instructions from them. Application was objected by plaintiff. Upon hearing the parties, trial Court vide impugned order dated 30-10-2015 granted permission to defendants 6 and 7 to cross-examine plaintiff’s witness. It is this order which is the subject matter of present writ petition.

3. Heard Shri S.P. Dharmadhikari, learned Senior Counsel for petitioner and Shri A.G. Gharote, learned Counsel for respondents 2, 3, 6 and 7.

4. Learned Senior Counsel submits that defendants 6 and 7 adopted cross-examination of the witness by pursis and the same amounts to an admission. Submission is that after filing pursis and adopting the cross-examination made by defendants 1 to 3, they cannot turn around and say that their case was not put up in the cross-examination by learned Counsel for defendants 1 to 3.

5. On the ambit and scope of Order XVIII, Rule 17 of the Code of Civil Procedure, learned Senior Counsel placed reliance on the decision of the Hon’ble Apex Court in Bagai Construction v. Gupta Building Material Store, MANU/SC/0195/2013 : (2013) 14 SCC 1 and Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, MANU/SC/0448/2009 : 2009(5) Mh.L.J. (S.C.) 142 : (2009) 4 SCC 410. Referring to the above decisions, it is submitted that power conferred upon Court under Order XVIII, Rule 17 of the Code of Civil Procedure cannot be used to fill up the lacuna, as trial Court in its order has clearly observed that there is no substance in the contention of defendants 6 and 7 that they have not instructed their counsel. Learned Senior Counsel submits that considering the scope of Order XVIII, Rule 17 of the Code of Civil Procedure, recalling of witness in the circumstances of the present case is not permissible and the impugned order being erroneous and illegal needs to be interfered with in extraordinary jurisdiction.

6. Per contra, Shri A.G. Gharote, learned Counsel for respondents 6 and 7 referred to application (Exh. 178) and submitted that defendants never instructed their counsel to pass such pursis and adopt cross-examination made by defendants 1 to 3. According to the learned Counsel, defendants 6 and 7 have raised a specific defence that they are bona fide purchasers and suit is barred by limitation. It is submitted that defence raised by defendants 6 and 7 was never put to witness by learned Counsel for defendants 1 to 3 and for want of cross-examination on the defence raised by defendants 6 and 7, their interest is going to be adversely affected in case witness is not recalled and not further cross-examined. In support of submission, learned Counsel placed reliance on the judgment of the Hon’ble Supreme Court in Himalayan Co-op. Group Housing Society v. Balwan Singh and others, MANU/SC/0609/2015 : 2015 MhLJ Online (S.C.) 55 : (2015) 7 SCC 373 and of this Court in Shewalkar Developers v. Sidarth Sinha, Writ Petition No. 741/2016, dated 21-4-2016 [2016 MhLJ Online 43].

7. With the assistance of the learned Counsel for the parties, this Court has gone through the impugned order. It can be seen from the order that the trial Court has considered the facts under which pursis came to be passed on behalf of defendants 6 and 7 and the necessity of recalling the witness to assist the Court in arriving at the proper conclusion. The learned Judge has also relied upon the decisions of the Hon’ble Apex Court in K.K. Vellursamy v. Palanisamy, MANU/SC/0267/2011 : 2011 MhLJ Online (S.C.) 27 : (2011) 11 SCC 275 and Himalayan Co-op. Group Housing Society v. Balwansingh, MANU/SC/0609/2015 : 2015 MhLJ Online (S.C.) 55 : (2015) 7 SCC 373, wherein the Hon’ble Supreme Court had settled the position of law in this regard. It is held by the Hon’ble Supreme Court that where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the Court to clarify the evidence on the issues and will assist in rendering justice and the Court is satisfied that non-production earlier was for valid and sufficient reasons, the Court may exercise its discretion to recall the witnesses or permit the fresh evidence.

8. In the case on hand, grievance of defendants 6 and 7 is that they have set up a specific defence in their written statement. Written statement filed by defendants 1 to 3 and line of cross-examination of PW-1 on behalf of defendants 1 to 3 would indicate that their challenge is on termination of agreement. The case put up by defendants 6 and 7 in their written statement is that they are bona fide purchasers and the suit is barred by limitation.

9. From the cross-examination of PW-1 Madhukar, it is apparent that defence raised by defendants 6 and 7 in their written statement is not put up to the witness in cross-examination by defendants 1 to 3. In this background, grievance made by of defendants 6 and 7 that their interest will be adversely affected cannot be said to be without substance.

10. So far as the decision of the Hon’ble Supreme Court on Order XVIII Rule 17 of the Code of Civil Procedure in the cases of Bagai Construction v. Gupta Building Material Store and Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate (supra) are concerned, it appears that at the stage of re-examination, application to recall witness was moved and the Hon’ble Supreme Court observed that witness cannot be recalled and re-examined in a routine manner. Needless to state that scope of re-examination is limited to the extent of removing ambiguity in cross-examination. In the present case, controversy has arisen at the stage of cross-examination and not at the stage of re-examination. In the above premise, this Court does not find any perversity or illegality in the discretion exercised by the trial Court. No interference is warranted in writ jurisdiction. Hence, the following order :

ORDER

i. Writ Petition No. 1307/2016 stands dismissed. ii. Rule is discharged with no order as to costs.

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