1 wp-10292-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10292 OF 2011 Sou Shubhangi Ajay Khomane ..Petitioner Versus Shri Ajay Badasaheb Khomane ..Respondent Mr. K.B.Sonwalkar for the Petitioner Mr. Tushar Sonawane with Mr. Prashant Hagare for the Respondent CORAM : R. M. SAVANT, J. DATED : 19th December, 2011 P.C. 1 The above Petition takes exception to the Order dated 20-10-2011 passed by the Learned Civil Judge, Senior Division, Baramati, by which Order, the Application Exhibit 50 filed by the Petitioner herein for re- cross-examination of the P.W.-1 Ajay Khomane, came to be rejected. The ground made out was that the documents in question were not made available to the Petitioner/Defendant at the time when the said P.W.-1 was cross-examined. 2 In so far as, the cross-examination of the witness is concerned, the cross-examination of P.W.-1 was complete, also the cross- examination of P.W.-3 and P.W.-4. However, in so far as, the P.W.-2 is 2 wp-10292-11.sxw concerned, the cross-examination was stopped by the Petitioner on the ground that the documents in question were not made available to her along with the papers which were served upon the Petitioner. In so far as, the P.W.2 is concerned, by an Order dated14-9-2011 the application Exhibit 51 for permitting the cross-examination of the P.W.-2 has been allowed on the ground that the documents were furnished to the Petitioner later on. The Application Exhibit 50 for re-cross-examination of P.W.-1 has been rejected on the ground that such a course of action is not permitted by Order 18 Rule 17 of the Civil Procedure Code and relying upon the Judgment of a Learned Single Judge of this Court reported in 2003(3) MhLJ 47 in the matter of Balkrishna Shivappa Shetty Vs. Mahesh Nenshi Bhakta. Paragraph Nos.5 and 10 of the said Judgment are material and are reproduced herein under: “5. The provisions of law contained in Order 18, Rule 17 of the Code provide that the Court may, at any stage of the suit, recall any witness who has been examined and may, subject to law of evidence for the time being in force, put such question to him as the Court thinks fit. The said provision of law apparently does not deal with the subject of allowing the parties to cross-examine the witness after such witness being recalled in exercise of powers thereunder. In other words, the provisions contained in Order 18, Rule 17 of the Code do not empower the Court to recall the witness for the purpose of cross-examination by either of the parties though it does permit recall of witnesses for the purpose of examination by the 3 wp-10292-11.sxw Court itself. Apparently, by ordering recall of the defendant No. 1 for the purpose of further cross- examination on behalf of the respondent Nos. 1 to 3 purportedly in the exercise of powers under Order 18, Rule 17 of the Code, the trial Court has clearly acted in error of jurisdiction as well as contrary to the provisions of law contained in the said rule. 10. Undisputedly, the defendant No. 1 was sought to be recalled for the purpose of cross- examination as certain documents came to be produced on record in the form of Exhibit-5 while the defendant No. 2 was in the witness box and who was examined after the conclusion of the testimony of the defendant No. 1. It is not in dispute that the documents which were placed on record in the form of Exhibit-5 were not relied upon by the parties and they came on record in the course of cross-examination of the defendant No. 2 without there being any objection being raised for the production of such documents by the respondent Nos. 1 and 3. There is nothing on record to disclose any justification for failure on the part of the respondent Nos. 1 to 3 for not raising any objection for the production of such documents in the course of cross-examination of the defendant No. 2, inspite of the fact that the said documents were neither relied upon by the defendant No. 2 nor were produced for the inspection of the respondent Nos. 1 to 3 prior to the production of the said documents on record. Can mere inaction or failure on the part of the respondent Nos. 1 to 3 to object the production of such documents in the course of recording of the evidence justify the exercise of inherent powers by the Court under Section 151 of the Code, to enable the respondent Nos. 1 to 3 to cross- examine the defendant No. 1 in relation to such documents by recalling the defendant No. 1? Mere such lapse on the part of the party or his counsel would not entitle the party to seek the 4 wp-10292-11.sxw assistance of the Court to get the witness recalled and cross-examination at the sweet will of such a party.” 3 In my view, therefore, the impugned Order rejecting the Application for re-cross-examination of P.W.-1 cannot be faulted with in the writ Jurisdiction of this Court under Article 227 of the Constitution of India. No case for interference is made out. The Writ Petition is accordingly dismissed. ( R. M. SAVANT, J. )