1 wp-9031-2011 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9031 of 2011 Chhaya Prakash Warekar .. Petitioner Versus Ashok Prabhakar Warekar .. Respondent Mr. R.R.Naidu for the Petitioner Mr. Deepak Chitnis a/w Ms Shirin S.K. i/b Deepak Chitnis Chipankar & Co. for Respondent CORAM : R.M.SAVANT, J. DATE : 15th NOVEMBER, 2011 P. C. : 1 The above Petition takes exception to the order dated 18-8-2011 passed by the Learned Judge of Bombay City Civil Court, by which Order, the Applications Exhibit 49, 50 and 5 filed by the Plaintiff were dismissed. 2 The Petitioner is the original Plaintiff who has filed the suit for perpetual injunction restraining the Defendant from dispossessing her from suit property and from obstructing her exclusive occupation and possession of the suit property in any manner whatsoever. The suit premises is the shop premises situated at Fort area in the city of Mumbai. In so far as, the Plaintiff is concerned, two witnesses have been examined on behalf of the Plaintiff’s i.e. P.W.-1 the Plaintiff herself and P.W.-2 Deepak Warekar. The Cross examination of the Plaintiff was concluded on 2 wp-9031-2011 16-2-2010. The Affidavit of evidence of P.W.-2 was tendered on 25-6-2010 and his cross examination was concluded on 10-2-2011. 3 In so far as, the documents between the parties are concerned, the admitted documents have been exhibited. In so far as, un-admitted documents are concerned, they have been given article numbers. 4 After the cross examination of P.W.-2 Deepak Warerkar was over, the Petitioner filed present application Exhibit 49 for clarification by way of re-examination of the Plaintiff in respect of certain answers which have come on record during the cross examination of P.W.1. 5 In so far as, Exhibit-50 is concerned, the Plaintiff sought to submit list of documents which are not exhibited and which are to be proved. She therefore, sought permission to prove them through re-examination. 6 In so far as, Exhibit-51 is concerned, the Plaintiff has sought permission to recall herself to prove certain documents as per the list annexed. In so far as, re-examination of the Plaintiff sought vide exhibit-50 and 51 is concerned, the Trial Court was of the view that it is only in the circumstances mentioned in Order 18 Rule 17 of the CPC , re- examination could be permitted which is self discretion of the Court. The Trial Court was of the view that since there was no ambiguity in the evidence of P.W.-1 and P.W.-2, the Application whereby re-examination of P. W.-1 was sought, was sans merit. In so far as, the un-exhibited documents are concerned, the Trial Court in view of the fact that the evidence of the 3 wp-9031-2011 P.W.-1 and P.W.-2 is already complete, was of the view that re-examination could not be allowed for proving un exhibited documents. However, the Trial Court has observed that the Plaintiff can prove the un exhibited documents by appropriate evidence, in accordance with the provisions of the Indian Evidence Act. The Trial Court has accordingly rejected all the three applications. 7 It is sought to be contended by the learned Counsel for the Petitioner that the documents which the Plaintiff has in possession are required to be proved and, therefore re-examination is warranted. The Learned counsel for the Petitioner sought to rely upon a Judgment of the Apex Court reported in 2011(3) ALL MR 455 (S.C.) in the matter of K. K.Velusamy Vs. N. Palanisamy, wherein the Apex Court has held that the provision enables the Court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. The said power cannot be use to fill up the lacunae in the evidence. In the instant case, it is required to be noted that the Trial Court has gone into the evidence recorded and has reach to the conclusion that there was no ambiguity in the evidence of P.W.-1 and P.W.-2, the Application whereby re-examination of P. W.-1 was sought, was sans merit. 8 In so far as, the documents which are un-exhibited, it is required to be noted that the cross examination of the P. W.-1 and P. W.-2 is already 4 wp-9031-2011 over and the Petitioner cannot be permitted to re-examine the said witnesses to prove the documents. In my view, therefore, there is no merit in the above Petition which is accordingly dismissed. 9 However, it is observed by the Trial Court in the penalty in paragraph 15 of the impugned order that, the Petitioner would be at liberty to prove the un-exhibited documents by leading appropriate evidence in accordance with the provisions of the Indian Evidence Act. (R.M.SAVANT, J.)