IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4279 of 2008. NOTICE OF MOTION NO.4279 of 2008. NOTICE OF MOTION NO.4279 of 2008. IN IN IN ADMIRALTY SUIT NO.14 of 2002. ADMIRALTY SUIT NO.14 of 2002. ADMIRALTY SUIT NO.14 of 2002. M/s.Satnam Overseas Ltd. ..Plaintiffs versus m.v. OOCL ABILITY & Ors. ..Defendants Mr.Ashwin Shankar for the plaintiffs Mr.Rahul Narichania for the defendant Nos.4 & 5 Mr.Umesh Shetty for the defendant No.6 A/W. A/W. A/W. NOTICE OF MOTION NO.4280 OF 2008 NOTICE OF MOTION NO.4280 OF 2008 NOTICE OF MOTION NO.4280 OF 2008 IN IN IN ADMIRALTY SUIT NO.16 OF 2002 ADMIRALTY SUIT NO.16 OF 2002 ADMIRALTY SUIT NO.16 OF 2002 M/s. Dhaval Agri Exports ..Plaintiffs versus m.v. MILENIA TOWER & Ors. ..Defendants Mr.Ashwin Shankar for the plaintiffs Mr.Umesh Shetty for the defendant Nos.5 and 6 in support of notice of motion Mr.Rahul Narichania i/b. Bhatt & Saldhana for defendants 3 & 4 A/W. A/W. A/W. NOTICE OF MOTION NO.4281 OF 2008 NOTICE OF MOTION NO.4281 OF 2008 NOTICE OF MOTION NO.4281 OF 2008 IN IN IN ADMIRALTY SUIT NO.17 OF 2002 ADMIRALTY SUIT NO.17 OF 2002 ADMIRALTY SUIT NO.17 OF 2002 M/s.Anjani Enterprises Ltd. ..Plaintiffs versus m.v. LEXA MAERSK & Ors. ..Defendants Mr.Ashwin Shankar for the plaintiffs Mr.Umesh Shetty for the defendant Nos.5 & 6 in -2- support of notice of motion. Mr.Abhimanyu Singh i/b. V. Subramanium for the defendant Nos.1 to 4 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 29th January, 2009. DATED : 29th January, 2009. DATED : 29th January, 2009. P.C. 1. These three motions are taken out by M/s. Kutch Shipping Agency Pvt. Ltd. and M/s. Dattar Lines, who are the defendants in the above three suits. For the sake of convenience they shall be referred to as "said defendants". All these three motions can be disposed of by a common order as the point involved therein is common. 2. These three suits were tagged together all along and the Court was hearing the arguments on the respective sides and by way of convenience Admiralty Suit No.14 of 2002 was taken up for the purpose of adhereing to the facts of the case. 3. After the arguments of learned Counsel Mr. Ashwin Shankar for the plaintiffs, Mr. Narichania argued on behalf of defendant Nos.4 and 5. Learned Counsel Mr. Umesh Shetty was called upon to argue -3- on behalf of said defendants. On 8.12.2008, learned Counsel Mr. Shetty, upon instructions from his clients informed the Court that his clients are interested in making an application in the Court for re-opening of the matter i.e. for recording of evidence on behalf of his clients. It is in these circumstances, some time was given to learned Counsel Mr. Shetty to attend to the matter. Accordingly these three motions came to be filed by his client namely M/s. Kutch Shipping Agency Pvt. Ltd. and M/s. Dattar Lines. The record clearly goes to show that plaintiffs availed of the opportunity of placing their evidence before the Court. Similarly, defendant Nos. 4 and 5 also examined their witnesses. Thereafter the matter was posted for arguments because the said defendants namely M/s. Kutch Shipping Agency Pvt. Ltd. and M/s. Dattar Lines did not lead any evidence on behalf of them. 4. I have heard learned Counsel on both the sides. Learned Counsel Mr. Umesh Shetty appearing on behalf of the said defendants took me through the affidavit in support of Notice of Motion as well as the reply filed by defendant Nos.4 and 5. -4- No formal affidavit in reply was filed by the plaintiffs opposing the notice of motion. However, the Counsel for the plaintiffs chose to oppose the motion on the basis of the record before the Court as according to him no specific affidavit in reply was required to be filed. 5. The fact that the said defendants did not lead evidence is admitted by them. It is required to be mentioned that till such time the turn of the counsel for said defendants came up for submitting his argument, no effort was made by the said defendants to come up and say that they wanted to lead evidence. Paragraph 3 and 4 of the affidavit in support of the notice of motion, if perused clearly indicate that at the relevant time i.e. when the said defendants could have examined their witnesses, they were of the opinion that it was not necessary to lead evidence. However, they have reconsidered the matter and they thought that evidence should be led. This will clearly go to show that at one point of time the said defendants thought it fit not to lead any evidence and at later point of time thought it fit to lead evidence. The counsel for the said defendants had -5- drawn my attention to the explanation to Order XVIII Rule 2 (Maharashtra Amendment) which reads as follows: "Explanation: Nothing in this rule shall affect the jurisdiction of the Court, for reasons to be recorded in writing, to direct any party to examine any witness at any stage." Learned Counsel Mr. Umesh Shetty pointed out that despite repeal of sub rule 4 of Order XVIII Rule 2 of C.P.C. which was akeen to the aforesaid provisions, the aforesaid provisions have not been repealed and therefore it will now be open to the Court to allow the said defendants to lead evidence. He, therefore, submitted that in the interest of justice the Court should grant aforesaid notice of motions. 6. As against this, learned Counsel Mr. Shankar appearing on behalf of the plaintiffs as well as Mr.Narichania appearing on behalf of defendant Nos.4 and 5 objected to the aforesaid notice of motion by contending that the said -6- defendants had enough opportunity to take up the decision and a conscious decision was taken at the relevant time and the said defendant had not led any evidence and therefore now there is no scope for the said defendants to say that they should be permitted to lead evidence. It was also submitted that, what prompted the said defendants to take a different view now in the year 2008 is not set out by the said defendants in the affidavit in support of notice of motions. Learned Counsel Mr. Abhimanyu Singh appearing in Suit No.17 of 2002 on behalf of the defendant Nos.1 to 4 supported the arguments advanced by the learned Counsel Mr. Shankar and Mr. Narichania. 7. I have perused the text of the affidavit in support and I have considered the submissions advanced on the basis of the explanation added to Rule 2 Order XVIII of C.P.C. on the basis of the Maharashtra Amendment. In this connection one can gainfully refer to paragraph 33 of the judgment of the Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India reported in AIR 2005 S.C.3355. A joint reading of the explanation as mentioned aforesaid as also the -7- aforesaid paragraph 33, I am inclined to observe that the request for allowing the party to examine the witness when the said party had chosen not to examine the witness in the past can be considered by the Court on the merits of the matter and by exercising the judicial discretion in the matter. Hence it is required to be observed that this Court has power to decide the question whether these notice of motions should be granted or not. 8. The Counsel for the said defendants had relied upon the judgment in case of Wasudev Sonone & Anr. vs.Jagannath Ramlalji Jugele reported in AIR 1986 Bom.43. This judgment was pointed out to submit that this Court has power to grant application filed by the said defendants. In view of the discussion which is mentioned aforesaid and in view of the judgment of Supreme Court in the case of Salem Bar Association and in view of the observation made by me earlier that the application can be considered on merits and after exercising the judicial discretion there is no need for this Court to elaborate more on the case of Vasudev Sonone and others. -8- 9. With the aforesaid discussion, I now consider the facts of this case. In the present case the said defendants have actively participated in the trial of the three suits in as much as the said defendants have extensively cross examined all the witnesses who were examined on behalf of the plaintiffs and defendants. It would mean that the said defendants could read whatever evidence which was recorded and they were in a position to take appropriate decision whether it was necessary for them to lead evidence in order to suceed in the matter. It is seen that at the relevant time when the turn of the said defendants came to present evidence they took a conscious decision as not to examine the witnesses and allowed the court to proceed for hearing of the arguments. In my view, once the said defendants took such a conscious decision, they are bound by the said decision. In the present case the said defendants have set out a ground that "On reconsideration" the said defendants were of the view that evidence is required to be led. In such a situation elaborate affidavit in support of notice of motion was required to be filed to explain as to under what circumstances the said defendants took the decision -9- of not examining the witnesses and who took the decision of not to put the witnesses on behalf of the said defendants before the Court. Possibly that would have clarified certain things in the matter. Merely to say that reconsidering the matter as a whole the said defendants wish to lead evidence is not sufficient. If the said defendants would have thrown light as to under what circumstances decision was taken of not examining the witnesses, that would have assisted the court in considering the case. It can not be said that the said defendants had no opportunity to participate in the trial and the decision taken by them was hasty decision. In my view, in the situation as discussed above, the court should not permit the party which has stopped itself from doing something voluntarily to re-open the entire matter and lead evidence. The proposition "in the interest of justice" may not be applicable to the facts and circumstances of this case in view of the peculiar conduct exhibited by the said defendants in the matter of attending to the job of recording of evidence. In my view, this is a fit case where the court should not exercise its discretion in favour of said defendants in granting their -10- request. 9. For the reasons mentioned aforesaid, I am not inclined to grant the aforesaid notices of motions and the same are required to be dismissed. I am not inclined to saddle the defendants with the costs of the motions. Hence the Order. ORDER a. The aforesaid three notice of motions are dismissed. There shall be no order as to costs. b. Since the aforesaid notices of motions were taken little prior to the commencement of the arguments, by learned advocate Mr. Shetty, the suits will have to be set down for arguments of Mr. Shetty. Accordingly, the suits are adjourned to 9.2.2009 for arguments. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)