bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 4358 OF 2009 PETITION NO. 4358 OF 2009 PETITION NO. 4358 OF 2009 Lavina Rajesh Sharma ... Petitioner v/s Rajesh Ramesh Sharma ... Respondent Mr.A.M.Vernekar for the petitioner. Mr.S.M.Gorwadkar for the respondent. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 6TH MAY, 2009 6TH MAY, 2009 6TH MAY, 2009 P.C. P.C. P.C.: 1. Rule. Rule made returnable forthwith, by consent. 2. The petition is filed against the order passed on 12.3.2009 by the Family Court. By this order, the Family Court has directed that the petitioner, who was the respondent in the petition before the Family Court, should be recalled for cross-examination only in respect of the documents produced on record in view of the order passed below Exh.78. 2. For the sake of convenience, the petitioner and the respondent will be referred to as the wife and the 2 husband, respectively. 3. Initially, the husband had filed an application for production of certain documents. That application was considered and by an order dated 5.7.2008, the application was rejected as it was vague. The Family Court did not permit the husband to recall the wife for cross-examination. Thereafter, it appears that certain documents were sought by the husband again and witness summonses were issued to certain authorities for producing these documents. By an order of the same date, the respondent husband’s application at Exh.78 was allowed to a certain extent, namely, witness summonses were issued to the parties concerned for production of documents. These documents were with respect to income tax returns of the wife from 2002-2003 to 2006-2007, the Bank statements of the wife’s accounts in two different banks and Demat Account. 4. After the documents were submitted before the Court by the respective parties, an application was made for recalling the wife for cross-examining her on the documents produced. That application has been granted and hence the present petition. 5. The learned advocate for the petitioner submits that 3 the Court cannot recall the witness for the purposes of cross-examination by the other party under Order XVIII Rule 17 of the Code of Civil Procedure. It is submitted that the inherent powers of the Court cannot be invoked for filling the lacuna in the evidence. The learned advocate further submits that, at best the Court could have put certain questions to the wife as held in the case of Balkrishna Shivappa Shetty v/s Mahesh Nenshi Balkrishna Shivappa Shetty v/s Mahesh Nenshi Balkrishna Shivappa Shetty v/s Mahesh Nenshi Bhakta Bhakta Bhakta & ors., reported in 2003(3) Mh.L.J. 49. & ors., reported in 2003(3) Mh.L.J. 49. & ors., reported in 2003(3) Mh.L.J. 49. 6. The learned advocate for the husband submits that this judgment would not be applicable to the proceedings before the Family Court in view of Section 10 of the Family Courts Act. He submits that the Family Court has been vested with powers under sub-section (3) to lay down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth in respect of the facts alleged. The learned advocate however submits that the judgment relied on by the learned counsel for the husband would not be applicable to the facts and circumstances in this case in view of provisions of Section 10 of the Family Courts Act. 7. In my view, without going into the questions as to whether Order XVIII Rule 17 would be strictly applicable 4 to the proceedings before the Family Court, a perusal of the order indicates that the husband wanted certain documents to be produced by the wife. He had cross-examined her at length in respect of the accounts. However, when called upon to produce those documents, the wife had not produced them. The husband thereafter made an application for witness summons and for production of those documents. Those documents are now on record and therefore, in my opinion, no useful purpose will be served by recalling the wife for cross-examination. The Family Court would consider the effect of production of these documents and their evidentiary value in accordance with law. Therefore, there is no need to recall the wife for cross-examination. 7. The impugned order dated 12.3.2009 is set aside. 8. Writ petition allowed. Rule made absolute. .....