IN THE HIGH COURT OF BOMBAY AT GOA *** WRIT PETITION NO. 200 OF 2003 1. Shri Chandrakant Vithu Borkar, s/o Vithu Laximan Borkar @ Alparqueira, major in age, married, serviceman, 2. Shri Chandrakant @ Chandar Babuso Borkar, s/o Babuso Vithoba Borkar @ Alparqueira, major in age, married, serviceman, 3. Shri Tulsidas Babuso Borkar, s/o Babuso Borkar @ Alparqueira, major in age, married, businessman, 4. Shri Anand Babuso Borkar, s/o Babuso Vithoba Borkar @ Alparqueira, major in age, married, serviceman, and 5. Shri Ankush Gangu Borkar, s/o Gangu Vithoba Borkar @ Alparqueira, major in age, bachelor, serviceman, all r/o Topcola, Borim, Ponda, Goa. ... Petitioners. Versus 1. Shri Anand Hiru Kavlekar, s/o Hiru Kavlekar, serviceman, major in age, 2. Shri Madhu Hiru Kavlekar, (since deceased, represented through his legal heirs), 2(a). Smt. Mayavati Madhu Kavlekar, widow of Madhuy Kavlekar, 2(b). Shri Prakesh Madhu Kavlekar, s/o Madhu Kavlekar, major, married, 2(c). Smt. Gatta Prakash Kavlekar, wife of Prakash Madhu Kavlekar, all three r/o Karai, Shiroda, Goa, 2(d). Smt. Sandhya Madhu Kavlekar @ Smt. Sandhya Rajendra Asgaonkar, 2(e). Shri Rajendra Asgaokar, - 2 - both majors, r/o Malbhat, Station Road, Margao, Goa, 2(f). Smt. Kunda Madhu Kavlekar @ Smt. Kunda Ashok Harmarlkar, married, 2(g). Shri Ashok Harmalkar, both major in age, r/o Harmal, Pednem, Goa, and 3. Shri Ramesh Hiru Kavlekar, s/o Hiru Kavlekar, major, serviceman, all r/o Karia, Shiroda, Ponda, Goa. ... Respondents. Shri Sudin Usgaokar, advocate for the petitioners. Shri R. G. Ramani, advocate for respondent nos. 1 and 3. CORAM : F. I. REBELLO, J. DATE : 26th June, 2003. ORAL JUDGMENT Rule. Respondents waive service. Heard forthwith. 2. The present challenge is to the Order dated 15th April, 2003, whereby the application by the plaintiffs for recalling defendant no.1 for cross-examination has been rejected. 3. The learned trial Court while passing the Order has proceeded on the footing that it has closed the cross-examination on 25th February, 2003, by a speaking order and further, considering the amendment to the Civil Procedure Code, granting the application for re-call would be an order contrary to the express provisions of the C.P.C. - 3 - 4. It is not necessary for me at this stage to deal with the issue whether the provisions have to be strictly read, considering those are procedural provisions. Ultimately what the Court must consider is the interests of justice. I do not however, in this matter, propose to decide that issue. The petitioners herein by their application had sought to re-call the witness. The trial Court in those circumstances ought to have examined the merits of that contention. That has not been done. Clearly this would disclose an error apparent on the face of the record. In the light of that, the impugned Order is set aside and the matter is remanded to the trial Court for considering and disposing of the application for re-calling of the defendant’s witness no.1 for cross-examination, on merits, after hearing both the parties. Rule made absolute, accordingly. In the circumstances of the case, there shall be no order as to costs. F. I. REBELLO, J. mc.