NMS. 2447-09 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 2447 OF 2009 IN SUIT No. 1088 OF 1973 Rungta Estate Private Ltd. & Ors. ... Plaintiffs Vs. Pradeep Gordhandas K. Vora & Ors. ... Defendants *** Mr. Shailesh Shah a/w Mr. Farhan Dubash a/w Ms. Anuja Jhunjhunwala a/s Ms. Dhanashree Deoskar i/b Munir Merchant, for the Plaintiffs. Mr. J. P. Sen a/w Ms. Ferzana Behram Kamdin i/b FZB Ass, for Defendant Nos. 1(a) to 1(c). *** CORAM : Smt. R. S. DALVI, J. DATE : JULY 27, 2011 PC. 1. By this Notice of Motion, defendant Nos. 1(a) to 1(c) have sought to recall the plaintiff’s witness i.e. plaintiff No. 5(a). The cross-examination was recorded by the court on 16th June, 2009. Upon the answers given by the plaintiff’s witness, defendant Nos. 1(a) to 1(c) have undertaken a search in the records of the court, as also the public authorities to produce certain further documents to confront the plaintiff’s witness to show the falsity of the evidence led by the plaintiff. The defendants also claims to have found certain other documents in their possession which would be required to confront the plaintiff’s witness. NMS. 2447-09 - 2 - 2. In fact the defendants were not required to show plaintiffs which are those documents. Mr. Sen gave illustration of certain documents, sought to be produced by defendant Nos. 1(a )to 1(c) to further confront the plaintiff’s witness. To wit the record of the Registrar of Companies, showing the witness as a Director of a Company which he has refuted, a register produced in the Small Causes Court Bombay showing a list of tenants, including the plaintiff. It is not for the court to consider the relevancy or admissibility of the documents, sought to be produced by one party to confront the witness of another party under the aforesaid provisions. A case is made out for further cross-examination to bring the entire truth before the Court. 3. Mr. Shah drew my attention to the Judgment of the Single Bench of this Court in the case of – Madhubhai Amthalal, Plaintiff Vs. Amthalal Nanalal & Ors., Defendants1 , in which the Court has put a rider upon the powers of the Court under Order 18, Rule 17 of the Civil Procedure Code, which are to be exercised only in exceptional circumstances with greatest care and in the most peculiar circumstances. The facts of this case merit further cross-examination. 4. Further cross-examination shall be recorded before the Court Commissioner, to be appointed by the Court. By consent of the Mr. Kamal Katha is appointed as the Court Commissioner to record further cross-examination of the plaintiff’s witness and any further witnesses of the plaintiff, if required, and thereafter the 1 A.I.R. (34) 1947 Bombay 156. NMS. 2447-09 - 3 - defendants’ witnesses. 5. The parties shall appear before the Court Commissioner initially on 8th August, 2011 and thereafter on the dates fixed by the Court Commissioner. Parties shall equally pay the commission fees, to be fixed by the Court Commissioner. 6. The Court Commissioner shall record evidence of the witnesses preferably on day-to-day basis. After the cross-examination of the witnesses of the plaintiff is completed, defendant Nos. 1(a) to 1(c) who are the only contesting defendants, shall file the affidavit of examination-in-chief of their witnesses and the affidavit of documents. 7. The parties to get the suit placed on board thereafter for considering the admissibility of the documents, produced by the defendants. Notice of Motion is disposed of in the aforesaid terms. [ Smt. R. S. DALVI, J. ]