1 wp6689-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6689 OF 2011 M/s Chikita Snack Bar .. Petitioner Versus Municipal Corporation of Greater Mumbai .. Respondent Mr. P. S. Dani i/by Mr. Yashpal M. Jain for the Petitioners Mr.M. M. Malvankar for the respondent CORAM: R. M. BORDE, J. DATED : 18th August, 2011 P. C. 1. Rule. Rule made returnable forthwith. 2. Heard finally with the consent of the learned counsel appearing for the parties, at the admission stage. 3. The facts giving rise to the presentation of the writ petition, need not be elaborated in detail. It is sufficient to note that an application tendered by the plaintiff- petitioner herein, seeking permission to present an affidavit in the form of additional examination-in-chief with a view to place on record certain documents to support the case pleaded by the 2 wp6689-11.sxw plaintiff has been turned down by the trial Court. 4. The petitioner presented an affidavit in lieu of examination in chief on 28th February, 2009 along with compilation of documents relied upon by him. Further evidence was permitted to be led. It is stated that after cross examination of the plaintiff was over, he could lay hand on certain documents which are relevant for determining controversy involved in the suit. Those documents were in fact presented with the commissioner. However, the commissioner did not consider the same and rightly so, as such, the application was tendered to the court requesting permission to place on record the additional affidavit along with documents. The trial Court, after considering rival contentions advanced by the parties, proceeded to reject the application. It is observed by trial Court in the order that the Court is vested with discretion to recall the witness and he can be examined even after the cross examination of the witness is over. According to the trial court, such power can not be exercised to fill up the lacunae in the evidence of the witness. 3 wp6689-11.sxw 5. It is to be noted that in the instant case, the plaintiff has not pleaded any new case, however, wants to support the case pleaded by him in the plaint by tendering certain documents on record. The plaintiff also states that he is prepared to make himself available for cross examination, if desired by the respondent-original defendant. 6. Reliance is placed on the judgment in the matter of Vaidiraj Naggappa Vernekar (Dead)- Through LRs Vs. Sharadchandra Prabhakar Gogate, reported in (2009) 4 Supreme Court Cases 410. Paragraph Nos. 29 and 30, of the judgment are relevant for consideration, which are reproduced below: “29. It is not well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties in the suit, but as indicated herein above, such power is to be invoked not to fill up the lacunae 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. 30. Of course, if the evidence on re-examination of a witness has a hearing 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.” 4 wp6689-11.sxw 7. Considering the facts and circumstances of the case, I am of the opinion that the it would be desirable to permit the plaintiff to place on record additional affidavit along with the documents, which is proposed to be tendered in evidence. At the same time, it is directed that the plaintiff shall make himself available for cross examination, if requested by the defendant. 8. For the reasons stated above, the impugned order passed by the learned trial Court below Exh.14 in L. C.Suit No.381 of 2006, dated 16th March, 2011 is quashed and set aside. 9. The application tendered by the plaintiff-petitioner herein, below Exh.14 shall be deemed to have been allowed. 10. Rule is made absolute accordingly. 11. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.)