1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 999 OF 2010 Mrs. Anita Anosh Shroff .... Petitioner Vs. M/s. J. M. Constructions & Ors. .... Respondents Mr. M. S. Karnik i/b. Mr. P. K. Vyas for the Petitioner. Mr. G. S. Godbole i/bMs. M. S. Parasnis for Respondent No.1. Mr. R. M. Haridas for Respondent No.3. CORAM : A.S. OKA, J. DATE : MAY 6, 2010 Judgment :- The Petition was finally heard as per the order dated 6th April, 2010. The submissions of the learned counsel appearing for the parties were fully heard on 22nd April, 2010. The Petition was adjourned to 23rd April, 2010 for Judgment. The Petition was shown on board on 23rd April, 2010 under the caption “Judgment”. When the petition was called out, a learned counsel appeared for the petitioner who had not appeared at the time of hearing. It 2 appears that after the petition was closed for judgment, the said counsel was briefed by the petitioner without informing him that the petition was fixed for judgment. The learned counsel has tendered apology. The petitioner by filing an affidavit dated 27th April, 2010 has tendered an apology. It is not necessary to deal with the said matter any further in as much as the Petitioner has filed the aforesaid affidavit setting out the circumstances under which she engaged another counsel. The Petitioner has tendered an unconditional apology. The apology is accepted. 2. By this Writ Petition under Article 227 of the Constitution of India, the challenge is to be orders dated 22nd January, 2010, 22nd February, 2010 and 26th February, 2010 passed by the learned Judge of the Court of Small Causes. 3. The present Petitioner is the third Defendant in a suit filed by the first Respondent. The suit has been filed by the first Respondent for eviction against the Petitioner and second and third Respondents. The first order under challenge is dated 22nd January, 2010 which is passed by the learned Trial Judge on an 3 Application made by the Petitioner at Exhibit 90. It must be stated here that the Petitioner as well as the second and third Respondents have filed a common written statement. The second Respondent herein (first Defendant) filed an affidavit in lieu of examination in chief. When the second Respondent stepped into the witness box, a permission was sought by the Petitioner to cross-examine the second Respondent. Accordingly, the Petitioner was permitted to cross-examine the second Respondent. Thereafter, the Advocate for the first Respondent/ Plaintiff cross-examined the second Respondent. On the date on which the cross-examination was completed, an Application at Exhibit 90 was made by the present Petitioner. The prayer in the said Application was that the Advocate of the Petitioner may be permitted to cross-examine the second Respondent on the basis of answers given by the second respondent during her cross- examination by the Advocate for the plaintiff-1st respondent. The first impugned order dated 22nd January, 2010 has been passed on the said application at Exhibit 90 by which the said Application has been rejected. Other two impugned orders have been passed during the pendency of this Petition. Order dated 22nd February, 4 2010 was passed by the learned Trial Court on an Application at Exhibit 98 made by the Petitioner. An adjournment was sought by the Petitioner by the said Application. The said Application was rejected and the Trial Court directed the Petitioner to proceed with the suit on the next date which was fixed as 26th February, 2010. On the said date, an order was passed by the Trial Court by which the evidence of the Petitioner was closed. The learned Judge while passing the said order has noted the statement made by the learned counsel appearing for the Petitioner that the matter was pending in this Court in the form of present Writ Petition. 4. The learned counsel appearing for the Petitioner submitted that there is a joint written statement filed by the Petitioner and the second Respondent. However, during the course of the cross-examination of the second Respondent by the Advocate for the first Respondent, the second Respondent has made statements which are not consistent of the stand taken in the written statement. He submitted that there appears to be a collusion between the first Respondent on one hand and the second and third Respondents on the other hand and therefore, 5 the Second Respondent deposed in her cross-examination certain facts which do not form part of the written statement and which are contrary to the stand taken in the written statement. He submitted that the Court has power under Rule 17 of Order XVIII of the Code of Civil Procedure, 1908 (hereinafter referred as the said Code) to recall a witness for further cross-examination. He submitted that considering the peculiar facts, the Court ought to have allowed the Petitioner to cross-examine the second Respondent as the stand taken by the said Respondent is completely contrary to the pleadings. He submitted that when this Court was seized of the issue as to whether Petitioner can be permitted to cross-examine the second Respondent, the trial Court was not expected to proceed with the further hearing. He pointed out that though the fact of pendency of this writ petition was pointed out , the Trial Court proceeded to close the evidence. He submitted that the further orders passed by the Trial Court are illegal. 5. The learned counsel for the first Respondent supported the impugned orders and submitted that an 6 opportunity was already granted to the Petitioner to cross- examine the second Respondent and hence merely because certain answers are given by second Respondent which may be against the Petitioner, now the Court cannot permit further cross- examination. He submitted that nothing prevented the Petitioner from leading evidence before the Trial Court and therefore the trial Court was justified in closing the evidence. The learned Counsel appearing for the third Respondent also supported the impugned orders. 6. I have given careful consideration to the submissions. It is not in dispute that on the Application made by the Petitioner, before advocate for first Respondent could cross-examine the second Respondent, the advocate for Petitioner was permitted to cross-examine the second Respondent. Only after cross- examination by the Petitioner was over, the advocate for the first Respondent/Plaintiff proceeded to cross examine the second Respondent. Even assuming that the second Respondent has given answers in the cross-examination which are contrary to the stand taken in the written statement, there is no provision in law 7 under which the Petitioner could have been permitted to again cross-examine the same witness. This is not a case where for certain reasons the Petitioner has not cross-examined the witness. The Petitioner has already availed of the opportunity of cross-examining the second Respondent. According to the Petitioner, certain answers given by the second Respondent during her course of cross-examination by the first respondent are contrary to the written statement and that certain statement made in the cross-examination do not form a part of the written statement. That is no ground to again cross-examine the second Respondent. The Trial Court was fully justified in rejecting the application at exhibit 90. 7. If the second Respondent has taken a stand in the evidence which is contrary to the pleadings or which is inconsistent with the pleadings, the Petitioner can always make submissions at the time of final hearing of the suit as regards the evidentiary value of the statements made by the second Respondent during the course of her cross-examination by the advocate for the first Respondent. The issue of evidentiary value 8 of the evidence of the second Respondent always remains open which can be agitated by the Petitioner. Therefore, as far as the challenge to order dated 22nd January, 2010 is concerned, subject to what is observed above, no interference can be made. 8. On 22nd February, 2010, an Application for adjournment was made by the Petitioner. The Application was rejected and the suit was kept on 26th February, 2010. The Petitioner appears to have prayed for time as the present Petition was pending. If the Trial Court was not inclined to grant adjournment, a reasonable time could have been granted to the Petitioner to apply for appropriate interim reliefs before this Court. However, the suit was kept on 26th February, 2010. The result of the impugned order dated 26th February, 2010 is that the Petitioner is prevented from leading evidence .The said order will have to be quashed and set aside and the Petitioner will have to be permitted to adduce her evidence. 9. Hence, Petition is disposed of by passing following order: 9 :: O R D E R :: i. Subject to what is observed above , the order dated 22nd January, 2010 passed by the Court of Small Causes on application at Exhibit 90 is confirmed. ii. The order dated 26th February, 2010 passed by the Trial Court, is set aside and the Petitioner is permitted to adduce evidence in support of her case. iii. The Writ Petition is disposed of on the above terms with no order as to costs. iv. The time of disposal of the suit is extended till 31st October, 2010. [A.S. OKA, J.] correction made by A.S.Oka, J. on the pen-drive. 10