SRJ wp-1105-10.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1105 OF 2010 A Shambhavi Collection & Another .. Petitioners V/s. Agarwal Agencies .. Respondent. Mr. I.M.Khairdi for Petitioners. Mr. B.G.Vaidya, for Respondent. CORAM : A.S.OKA, J. DATE : 29th MARCH,2010. P.C. : 1] Heard learned Counsel for the parties. On 16th February, 2010 notice for final disposal at admission stage was issued. 2] The Respondent is the Original Plaintiff and the Petitioners are the Defendants. A money suit has been filed by the Respondent against the Petitioners. After recording of evidence was over, there were two applications made by the Petitioners. One application at Exhibit 153, was for seeking permission for production of documents. The second application at Exhibit 152, was for seeking recall of Petitioner No.2 for further examination- in-chief for the purposes of proving documents which were sought to be produced. The application at Exhibit 153 was allowed by the Learned Trial Court by order dated 13th SRJ wp-1105-10.sxw 2 January,2010. The learned Judge, while allowing the said application at Exhibit 153, observed that the issue whether the questioned documents can be read in evidence or not will be decided at the time of final Judgment. On the other application at Exhibit 152, the learned Judge passed an order rejecting the said application. However, the learned Judge kept open the point whether the documents can be read in evidence. The learned Judge observed that the documents which are filed on record may be taken into consideration at the time of judgment whether those are proved or not . 3] The learned Counsel appearing for the Petitioners submitted that a limited prayer was made by the Petitioners seeking recall of the second Petitioner for a limited purposes of dealing with the documents the production of which was allowed under order below applications at Exhibit 153. He submitted that as the production is allowed, the prayer for recall of the second Petitioner could not have been rejected. He pointed out that when the second Petitioner examined himself, the said documents were not on record. Hence, he submitted that the application at Exhibit 152 ought to have been allowed. The learned counsel for the Respondent pointed out that the second Petitioner has already examined himself and now at the stage of final arguments in the suit, the Petitioners cannot be permitted to re-open the evidence. He, therefore, submitted no interference is called for. 4] I have given careful consideration to the SRJ wp-1105-10.sxw 3 submissions. Both the applications are decided by the learned Judge on the same day. The learned Judge found that the documents which were sought by the Petitioner were relevant and in fact, the said documents were on record of the Criminal case under section 138 of the Negotiable Instrument Act, 1881. While allowing the production of the documents, the learned Judge passed the following order:- Production is allowed. Whether those documents be read in evidence or not will be decided at the time of judgment. While rejecting of the said application at Exhibit 152 for recall of the second Petitioner, the learned Judge passed the following order:- Application is rejected, with observation that point whether the documents to be read in evidence will be taken into consideration at the time of judgment. In the body of the said order below Exhibit 152 the learned Judge has observed that the documents which are filed on record may be taken in to consideration at the time of judgment whether those documents are proved or not. In fact, these observations will cause prejudice to both the parties. The documents were not filed on the record when the evidence was of the Petitioners was recorded. No opportunity was available to the Respondent SRJ wp-1105-10.sxw 4 to cross-examine the second Petitioner on the said documents. After the Court found that the documents were relevant, a permission to re-examine the second Petitioner ought to have been granted. The learned Counsel appearing for the Petitioners, on instructions, stated that the Petitioners desire to recall only the second Petitioner and the further examination-in-chief will be confined to the documents which are permitted to be produced on record by order dated 13th January, 2010 passed below application at Exhibit 153. He states that further affidavit in lieu of examination-in-chief will be filed by the Petitioner within one week. 5] Hence, the Petition deserves to be partly allowed. Hence, I pass the following order:- (i) The impugned order dated 13th January, 2010 passed below application at Exhibit 152 is modified. It will be open for the second Petitioner to file further affidavit in lieu by examination-in-chief within a period of one week from today. The affidavit will be confined to the documents which are permitted to be placed on record by order dated 13th January, 2010 passed below application at Exhibit 153. It is made clear that Petitioners will not be entitled to lead further evidence except the evidence of the second Petitioner. SRJ wp-1105-10.sxw 5 (ii) It is obvious that the Respondent will be entitled to cross examine the second Petitioner on the basis of the aforesaid affidavit. It will be also open for the Respondent to recall other witnesses examined by the Petitioners for cross-examination on the said documents. It will be also open for the Respondent to lead further evidence dealing with the evidence which will be adduced by the Petitioners; (iii) The Petition is allowed in above terms. (iv) All the contentions of the parties on merits of the suit are expressly kept open. (A.S.OKA, J. ) SRJ wp-1105-10.sxw 6