1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION CHAMBER SUMMONS NO. 89 OF 2009 IN TESTAMENTARY SUIT NO. 32 OF 1993 IN TESTAMENTARY PETITION NO. 5 OF 1992 Herbert Irwin Pereira ...Plaintiff. Vs. Rudolph Pereira & Ors. ...Defendants. Mr. S.F. Rego with Mr. N.J. D’Monte for the Plaintiff. Mr. Denzil D’mello for the Defendants. CORAM :- ANOOP V. MOHTA, J. DATED :- 15TH SEPTEMBER, 2009. P.C.- 1 This Chamber summons is taken out by the plaintiff basically under Order 18 Rule 17 of the Code of Civil Procedure (for short, CPC) seeking a leave to recall the attesting witness, Mr. Fredrick D’Souza to appear before the Commissioner and to have further evidence recorded. Admittedly, the said witness is the attesting witness to the last Will of Austin Nicholas Pereira @ Austin N. Pereira. 2 The Petition for probate, as objected by the Defendants, converted into the suit in question. Therefore, there is a dispute. So far as the Plaintiff is concerned to prove the Will, the evidence of attesting witness is 2 a must. 3 Though the contention that he is the only attesting witness available which Respondents-Defendants are not accepting, but fact remains that the Plaintiff had examined the said witness earlier and want to recall the same to substantiate the issue and the burden so imposed upon him. Therefore, as the evidence of this attesting witness plays very eminent role. I am granting this opportunity again to the Plaintiff. 4 The learned counsel appearing for the Defendants has strongly relied on Order 18 Rule 17 of the CPC. Order 18, Rule 17 reads thus:- 17. Court may recall and examine witness.- The Court may at any state of a suit recall any witness who has been examined ande may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.” 5 He also relied on the Supreme Court Judgments of Smt. M.M. Amonkar & Ors. Vs. Dr. S.A. Johari, 1984, S.C. 931 and Balkrishna Shivappa Shetty Vs. Mahesh Nenshi Bhakta & Ors. AIR 2003 Bom. 293. 6 The principles so laid down need no discussion. On the facts whether the Court should exercise its discretion in favour of the Plaintiff, granting or recalling the witness and; whether it is an exceptional stands based upon which the plaintiff has taken out this Chamber Summons are the points for consideration. 3 7 Recently, in Vadiraj Naggappa Vernekar Vs. Sharadchandra Prabhakar Gogate, 2009(5) Mh.L.J. 142, after considering the earlier view Smt. M.M. Amonkar (Supra) as relied by the learned counsel appearing for the Defendants has elaborated and reiterated the principles in following terms. 17. It is now well settled that the power to recall any witness under Order 18 Rule 17, Civil Procedure Code can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacuna in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial Court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47, Civil Procedure Code may be applied when a party makes an application under the provisions of Order 18, Rule 17, Civil Procedure Code, but it is ultimately within the Court’s discretion, if it deems fit, to allow such an application.” 8 As already noted, the importance of attesting witness as recognized and as settled, just cannot be overlooked. In the facts and circumstances, the Court has already by order dated 31st March, 2009 permitted the Plaintiff to ask his own witness questions in the nature of cross examination under Section 154 of the Indian Evidence Act. Knowing fully the consequences of the same, the Plaintiff has in fact asked some questions and close the matter. The Defendants have also closed the case. 4 9 In a situation where the only attesting witness, if not supporting the petitioner-plaintiff, and as the very burden lies upon him, he need not be allowed to suffer any loss because of the lapse on the part of the advocate as some important aspects were failed to take note of at the relevant time. The rules are meant for justice. 10 As already permitted by order dated 31st March, 2009, I am also granting permission to the learned counsel appearing for the Defendants to cross examine the witness after the evidence of Mr. Fredrick D’souza, if so instructed and, if necessary. 11 Therefore, I am inclined to exercise the discretion by allowing this Chamber Summons in the interest of justice, however, it is subject to costs of Rs.5,000/- (Rupees five thousand only) to be paid on or before 22nd September, 2009. 12 It is made clear that recalling of this witness again cannot be utilized to re-open the issues and or to fill up the gaps/ lacunas. These aspects, the concerned commissioner, needs to consider/ take note of by hearing both the parties and by recording necessary objections, if any. 13 Resultantly, the Chamber Summons is allowed in terms of prayer clause (a) with above condition precedent of depositing the amount on or before 22nd September, 2009. (ANOOP V. MOHTA, J.)