1 WP 3002.2010 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3002 OF 2010 M/s Dolchand Kallaji A partnership firm carrying on business as Engineers and Contractors from 16th Ratiwala Chawl, Bhavani Shankar Road, Dadar (West), Mumbai Through its Power of Attorney Holder – Sandip S/o Sankalchand Hirani, Age : 41 Yrs., Occ. Business, R/o : Ville Parle, Mumbai. ....PETITIONER V E R S U S 1. The State of Maharashtra Through District Collector, Nanded. 2. Maharashtra Jeevan Pradikaran Express Towers, 4th Floor, Nariman Point, Mumbai. 3. The Executive Engineer Maharashtra Jeevan Pradikaran Work Division 1, Jal Bhavan 2 WP 3002.2010 - [ J ] Second Floor, Tushar Colony, Near Work Shop, Nanded. .... RESPONDENTS Mr. M.D.Narwadkar, Advocate for the Petitioner. Mr. K.B.Choudhari, Addl.Govt. Pleader for State. Mr. D.P.Bakshi, Advocate for Respondent no. 3. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 20/07/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. Heard the learned counsel for the respective parties. 3. The petitioner is the original plaintiff, who had filed Suit for damages and compensation. The petitioner had filed documents on record and thereafter examined five ( 5 ) witnesses. The petitioner had filed an application for recall of the witness i.e. G.P.A. holder, who had earlier adduced the evidence for the purpose of proving the vouchers of the staff salary, conveyance and staff welfare vouchers. The said application is 3 WP 3002.2010 - [ J ] rejected. Aggrieved thereby, the present Writ Petition is filed. 4. Mr. Narwadkar, the learned counsel for the petitioner submits that the Court while rejecting the application, has taken hyper technical approach. The Court ought to have taken into consideration the fact that it was bonafide mistake in not proving the said documents when the witness was examined earlier. The application was not mischievous nor was filed with an intention to protract the matter as the petitioner was not to be benefited by causing delay. It was the Suit of the petitioner claiming compensation. The learned counsel relies on the Judgment of the Apex Court in a case of K.K.Velusamy V/s N. Palanisamy reported in 2011 ( 3 ) ALL MR – 455 (S.C.). According to the learned counsel, the documents are relevant and material for proving the case of the petitioner. 5. Mr. D.P.Bakshi, the standing counsel for the respondent nos. 2 and 3 opposes the petition and contends that the petitioner is trying to fill in the laches. The petitioner has examined five ( 5 ) witnesses and still the said documents were not proved. It is not the case that the said documents were subsequently traced out. The same were on record when the witnesses were examined. In such circumstances, the trial court has rightly relied on the Judgment of the Apex Court in a case of Salem Advocates Bar 4 WP 3002.2010 - [ J ] Association, Tamil Nadu V/s Union of India 2005 ( 5 ) ALL MR (S.C.) - 876. 6. The learned Additional Govt. Pleader for State adopts the arguments of Mr. Bakshi and contends that no plausible reason is given for not proving the said documents earlier. 7. The powers under Order XVIII Rule 17 of the Code of Civil Procedure [ For short, ‘ the Code ’ ] are to be exercised sparingly. The fact which is to be considered is that whether the application filed for recall of the witness was bonafide or not. In a genuine case, the Court can also resort to the provisions of Section 151 of the Code for doing complete justice. The documents which are sought to be proved by recalling witness are already on record. It was by inadvertence, the same were left to be proved. No malafides can be attributed to the petitioner in that regard. Even the petitioner would not be benefited by causing delay as it is his Suit claiming compensation. In such circumstances, observations of the Apex Court in a case of K.K. Velusamy referred supra would be squarely applicable. The Apex Court in the said case has observed as under : “ We may add a word of caution. The power under section 151 or Order 18 Rule 17 of the 5 WP 3002.2010 - [ J ] Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice and the court is satisfied that non production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party 6 WP 3002.2010 - [ J ] had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application ”. 8. In light of the above observations, the impugned order is quashed and set aside and application ( Exh. 734) filed in Spl. Civil Suit No. 42 of 2003 is allowed on condition that the petitioner pays cost of Rs. 5,000/- ( Rupees Five Thousand only ) to the respondent no. 1 and Rs. 5,000/- ( Rupees Five Thousand only ) to the respondent nos. 2 and 3 within the period of four ( 4 ) weeks from today. The cost shall be either paid directly to the respondents or deposited in the trial court. 9. Rule accordingly made absolute in terms of prayer clause ‘ C ’ and ‘ D ’. [ S.V. GANGAPURWALA,J. ] KNP/WP 3002.2010 - [ J ] 7 WP 3002.2010 - [ J ]