1 969.nms.786.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ata NOTICE OF MOTION NO.786 OF 2011 IN SUIT NO.2423 OF 1995 Natasha Construction Pvt Ltd .. Plaintiff V/s. Hilare D’Souza and ors .. Defendants _____________________ Ms.Shilpa Kapil, Plaintiff in support Mr.R.S.Tripathi with O.J.Menezes Defendant to showcause CORAM :R.M.SAVANT J. DATE :21st March,2011 P.C.:- The above Notice of Motion is filed seeking the following reliefs: “a) that this Hon’ble Court be pleased to return the Original Compilation of Documents filed alongwith Affidavit-By- Way of Examination-In-Chief by the witness of the Plaintiff dated 26.11.2007 to the plaintiff” b) that this Hon’ble Court in view of the unavailability of Shri.Ambrish K.Jhaveri witness of the plaintiff be allowed to 2 969.nms.786.11.sxw withdraw the Affidavit-By-Way of Examination-In-Chief dated 26.11.2007, if in law permissible” 2) The reasons why the said reliefs are claimed are mentioned in the affidavit in support. The said reasons can be culled out from paragraph nos.3 and 4 in support. The sum and substance why the plaintiff seeks the said relief is that the witness one Ambrish K.Jhaveri , who has filed the affidavit of evidence has resigned from the company and the moving out of the said Shri.Ambrish K.Jhaveri from the company was not amicable. It is significant to note that the affidavit of evidence compromises the evidence in chief of the said witness. The documents in the compilation which has been filed on behalf of the plaintiff have been referred to in the said affidavit of evidence. The law mandates that the plaintiff has to make an attempt to get the witness for the purposes of being cross examined by the other side. In the event the witness does not appear , then the law would take it’s own course as the court would then be free to issue witness summons to the said person, if required. In the instant case even without ascertaining as to whether the said witness is available or not , the plaintiff seeks the above mentioned reliefs on the specious 3 969.nms.786.11.sxw ground that the witness has left the services of the plaintiff, and that leaving of the said company by the witness was not amicable. 3) In my view, considering the purport & intent of Order XVIII Rule 2 of the Civil Procedure Code, the relief as sought by the plaintiff in the above Notice of Motion cannot be granted. The Motion is accordingly rejected. (R.M.Savant,J.)