1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 5125/2010 (Nandlal J. Vastani VERSUS Yunushbhai Abdullabhai) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.S. Kilor, counsel for the petitioner. Shri Abhijit Deshpande, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 12 , 2011 . Heard. By this petition, the petitioner impugns the order dated 06.08.2010 rejecting an application filed by the petitioner for recalling of the plaintiff and his witnesses for cross-examination. The petitioner is the original defendant. A suit was instituted by the respondent-plaintiff for recovery of possession under Section 16(1) (g) of the Maharashtra Rent Control Act. The petitioner filed the written statement and denied the claim of the respondent. During the pendency of the suit, the petitioner filed an amendment application for amendment of the written statement so as to incorporate the fact that the plaintiff was not the owner of the suit property and the mutation entries show that one Akhtar Hussain, who 2 was also examined by the plaintiff as a witness was the owner thereof. Though the prayer made in the amendment application was opposed by the respondent-plaintiff, the same was granted. After the amendment application was allowed, the petitioner filed an application for recalling the plaintiff and his witnesses for cross-examination. The application filed by the petitioner was seriously opposed by the respondent- plaintiff on the ground that the petitioner wanted to fill in the lacuna in the case by seeking the relief sought by the application. It was stated by the respondent-plaintiff before the trial Court that the petitioner-defendant was not examined in the case and he could have, as well proved the document on the basis of which, the amendment was sought. The trial Court, on an appreciation of the submissions made on behalf of the parties, rejected the application filed by the petitioner. The order passed by the trial Court does not suffer from any error and the same appears to be just and proper. The plaintiff-respondent had sought the relief of recovery of possession and the trial Court rightly held that the burden to prove the case clearly lay on the plaintiff. The trial Court held that the defendant carried out some amendment in view of the certified copies of the mutation 3 entries in the Office of the Taluka Inspector of Land Record, Khamgaon and since the evidence of the petitioner was not recorded in this case, the defendant had an opportunity to lead the evidence in regard to the mutation entries and the facts stated in the proposed amendment. The trial Court rightly held that the cross-examination of the plaintiff and his witnesses was already concluded and in the facts and circumstances of the case, it was not necessary to recall the plaintiff and his witnesses for cross- examination. The judgment reported in 2009(5) Mh.L.J. 142 (Vadiraj Naggappa Vernekar (dead) through LRS. Versus Sharadchandra Prabhakar Gogate) and relied on by the counsel for the petitioner is not helpful to the case of the petitioner but, in fact, lends support to the order passed by the trial Court rejecting the application filed by the petitioner for recalling the plaintiff and his witnesses. The Hon'ble Supreme Court has clearly held in the aforesaid decision that 'the power to recall any witness has to be exercised sparingly and the purpose of Rule 17 is to enable the Court while trying a suit to clarify any doubts, which it may have in regard to the evidence led by the parties.' In the instant case, since the facts stated in the written statement could have been very well proved by the 4 defendant by tendering the evidence in that regard, the trial Court rightly exercised its discretion in judicious manner in rejecting the application for recalling the plaintiff and his witnesses for cross-examination. The order does not suffer from an error, much less, a jurisdictional error, so as to interfere with the same in exercise of the writ jurisdiction. The writ petition is dismissed with no order as to costs. JUDGE APTE