1 907-chs-60-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj TESTAMENTARY AND INTESTATE JURISIDCTION CHAMBER SUMMONS NO.60 OF 2011 IN TESTAMENTARY SUIT NO.46 OF 1997 IN TESTAMENTARY PETITION NO.308 OF 1997 The Maharashtra Executor & Trustee Co. Ltd., .. Plaintiff/ Petitioner. V/s. Ashok R. Shetty & Others .. Defendants/ Respondents. Mr. Milind T. Shewale, for the Plaintiff / Petitioner. Mr. U.J.Makhija, Sr. Advocate a/w. Ms. Indra Sajnani i/b. S. M. Associates, for Defendant / Respondent Nos. 1 to 3. Mr. Shailesh Shah a/w. Ms. Sonali i/b. Zohair & Co., for Defendant/Respondent Nos.4 & 5. CORAM : SMT. R.S.DALVI, J. DATE : 10th June, 2011. P.C.: 1 Evidence in this suit has been recorded with regard to the execution of the Will. The Will contains a hand-written date. No evidence is recorded with regard to the hand-written date. Other witnesses have also been examined. The suit came up for arguments. 2 907-chs-60-11.sxw The Will was not marked as Exhibit, as it was seen by the Court that it was not proved by direct oral evidence. The only aspect which has been left out relates to the proof of the hand-written date of the Will in the execution clause. The Plaintiff has, therefore, applied for re- calling of the witnesses who sought to prove the Will. The Defendant has objected. 2 The Court may re-call any witness. The entire truth is to be brought on record. Part of the evidence may not be on record by way of inadvertence. No party can take advantage of any inadvertent error. The Court is interested only in asserting the whole truth. Mr. Shah relied upon various judgments in this behalf. Under section 151 of the C.P.C., Court can re-call any witness for further evidence. That will be, of-course, subject to witness being cross examined thereafter. 3 Mr. Makhija argued that the witness cannot be re-called under certain circumstances. He relied upon the judgment of the Single Judge of this Court in the matter of Balkrishna Shivappa Shetty v/s. Mahesh Nenshi Bhakta & Others, reported in AIR 2003, Bombay 293. In that case, the Defendant wanted to re-call the witness merely to produce all documents which were taken on record in the course of evidence. Hence, it was observed that the witness 3 907-chs-60-11.sxw cannot be re-called for further cross examination. 4 Mr. Makhija also relied upon the judgment in the matter of Soma Devi v/s. Guln Devi & Others, reported in AIR 2003, Himachal Pradesh - 58. In that case, the witness was sought to be re-called to cross examine on the aspect that the Will does not bear the signature of testator. However, suggestion in that regard was also made in the evidence. Hence, witness was not re-called in that case. In this case, the witness who proved his Will is required to depose about the date of this Will. That must be allowed. 5 The Plaintiff shall file further affidavit of Examination-in- Chief within one week, only on this limited aspect. The Defendant shall be entitled to further cross examine the Plaintiff's witness. The Plaintiff does not rely upon any further documents and no admissibility of documents is to be considered. 6 Mr. Naushad Engineer is appointed as Court Commissioner to record the further evidence, as the Commissioner earlier appointed is stated to have returned the papers. 7 Parties shall appear before the Court Commissioner initially on 21 st June, 2011 at 5.00 p.m. and thereafter as fixed by the Court Commissioner. 4 907-chs-60-11.sxw 8 The Court Commissioner shall record the evidence preferably day-to-day. The Plaintiff shall pay the fees of the Court Commissioner as fixed by the Court Commissioner. The Plaintiff shall be entitled to file the further affidavit of evidence before the Court Commissioner directly, since no documents are required to be considered by the Court. The Plaintiff shall give copy of further affidavit of evidence to the Defendants' Advocate in advance. 9 Parties to place the suit on board for hearing after the evidence is completed. 10 This order is stayed for two weeks. (R.S.DALVI, J.)