1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5472 OF 2010 Dhule Madhyawarti Sahakari Grahak Bhandar, Shamprasad Building, Nagar Patti, Dhule, through its Manager Prakash Umrao Shinde, age: 53 years, Occ: Manager, R/o Sunder Nagar, Plot No.58, Deopur-Dhule, District Dhule. Petitioner Versus Anslem s/o Philip Coates, age: 32 years, Occ: Business, R/o B-1 & 2, Shrirang Park, Vedant Nagar, Station Road, Aurangabad, Dist. Aurangabad. Respondent Mr. P.F.Patni, advocate for the petitioner. Mr. A.B.Kadethankar, advocate for Respondent. CORAM: R.M.BORDE, J. Reserved on : 20 th September, 2010. Pronounced on: 12 th October, 2010. ORDER: 1 An interlocutory order passed by 14th Joint Civil Judge, Junior Division, Aurangabad on 18th March 2010, below Exhibit-25 in Regular Civil Suit No.551/2007, is subjected to challenge in this petition at the instance of original defendant. 2 2 Respondent – original plaintiff filed suit claiming recovery of an amount of Rs.56,071/- from the defendant – petitioner herein. Defendant has presented written statement and controverted the contentions raised by plaintiff in the plaint. The trial Court framed issues and the parties proceeded to lead evidence on their behalf. Plaintiff presented affidavits of himself and his witness by way of examination-in-chief on 05.12.2008. Thereafter plaintiff sought leave of the Court to produce original documents on record which were referred to by him in the affidavits in lieu of examination-in-chief and the true copies thereof were also placed on record along with plaint. 3 Initially the trial Court did not grant the application, however, on consideration of Review Application, the Court permitted production of original documents. Said order has attained finality. Defendant thereafter led his evidence. It transpired thereafter that although the documents are placed on record and although same are referred to in the examination-in- chief, those have not been exhibited by the Court. Plaintiff, therefore, tendered an application to the Court to permit him to re- examine himself only for the purpose of exhibition of the documents. The application was opposed by the defendant contending that same is not contemplated by any provisions of Civil Procedure Code and that the provisions of Rule 17 Order XVIII cannot be invoked for purposes of filling up lacuna appearing 3 in the case of the plaintiff. The trial Court, however, exercised discretion in favour of the plaintiff and granted application subject to payment of costs of Rs.2000/-. The said interlocutory order, passed by the trial Court, is subjected to challenge in this petition. 4 Learned Counsel appearing for the petitioner – original defendant has contended that the powers conferred under Rule 17 of Order XVIII of the Code of Civil Procedure cannot be exercised to fill up the omissions in the evidence of the witness who has already been examined. It is contended that the question of prejudice is not only the criteria for exercising powers under Rule 17 Order XVIII. The application is an attempt by the plaintiff to fill up the lacuna in his case, which is not permissible. Reliance is placed on the judgment in the matter of Vadiraj Naggappa Vernekar (Dead) through L.Rs Vs. Sharadchandra Prabhakar Gogate, reported in (2009) 4 SCC 410, and it is contended that the order passed by the trial Court is oppose to the law laid down by the Apex Court. 5 In the reported matter, the question, which had fallen for consideration before the Apex Court was, whether a witness having been examined by way of affidavit evidence could be recalled for giving further evidence with regard to the facts not mentioned in the affidavit. While dealing with the matter, the Apex Court has observed, in paragraphs no.25 & 26, as noted below: 4 “25 In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. 26 As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared.” In paragraphs 30 & 31 of the judgment, it is observed thus: “30 Of course, if the evidence on re- examination of a witness has a bearing 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. There is nothing to indicate that such is the situation in the present case. 31 Some of the principles akin to Order 47 CPC may be applied when a party makes an 5 application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the court’s discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.” 6 The matter before the Apex Court was as regards re- examination of a witness who was examined before the Court by way of affidavit evidence and was being summoned for giving evidence with regard to the facts which were not disclosed by him in the affidavit. Such are not the facts in the instant matter. The witness has specifically referred to the documents in his examination-in-chief. Copies of the documents were tendered along with the plaint and the documents were also referred to in the plaint. The trial Court has permitted the witness to be recalled only for the purpose of putting exhibits on the documents, which is a requirement of law. The Apex Court has also observed that it is ultimately within the discretion of the Court to allow the application and in the instant matter, I am of the opinion that the discretion exercised by the trial Court need not be interfered with. 7 Reliance also can be placed on the judgment in the matter of Jodhpur Gums and Chemicals Pvt. Ltd. Vs. Punjan National Bank & others, reported in AIR 1999 Rajasthan 38, wherein the Rajasthan High Court, in similar circumstances, has held that: 6 “When certain documents, which are already placed on record, are not exhibited and are not proved due to oversight of the advocate, an application recalling the plaintiff for proving the document with liberty to defendants to cross -examine the witness, can be allowed.” 8 In similar circumstances, the Punjab and Haryana High Court, in the matter of Om Prakash Vs. Sarupa and others, reported in AIR 1981 Punjab & Haryana 157, observed that: “A party cannot be allowed to suffer for any omission or lapse on the part of his counsel, when it relates to requirement of any law. The rules of procedure are meant to advance the cause of justice. Moreover the opposite party could be compensated by payment of costs.” 9 I am also in respectful agreement with the view expressed by the Punjab and Haryana High Court in the reported judgment. 10 Reliance is placed on the judgment of this Court in the case of Balkrishna Shivappa Shetty Vs. Mahesh Nenshi Bhakta & others, reported in 2003 (3) Mh.L.J. 47, wherein it has been ruled by this Court, that: “Powers cannot be exercised by the Court for cross-examination of witnesses by either of the parties but for the purpose of examination by court itself.” 7 11 In the instant matter, the witness is not being recalled for the purposes of cross examination by the plaintiff, but is being recalled for complying with certain requirement of law, which, due to inadvertence and lapse on the part of Counsel, remained to be fulfilled. 12 Considering all relevant circumstances, I am of the view that the discretion exercised by the trial Court, in the facts and circumstances of this case, need not be interfered with in exercise of extraordinary jurisdiction under Article 227 of the Constitution. It is clarified that the defendant shall have liberty to cross examine the witness. 13 Writ Petition is devoid of substance and hence stands rejected. (R.M.BORDE) JUDGE ******* adb/wp547210