1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4397 OF 2009 C.T.R.Manufacturing Industry Ltd.Pune ...Petitioner vs. Chaukulkar and Associates & Ors. ...Respondents Mr.Prathmesh Bargude i/b Mr.S.B.Deshmukh for the petitioner Mr.V.V.Kanade i/b Mr.Sanjay Gawde for Respondent nos.1 to 4 CORAM :A.S.OKA,J. DATE : SEPTEMBER 1, 2009 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent nos.1 to 4. The present petitioner is the plaintiff. The challenge in this writ petition under Article 227 of the Constitution of India is to an order dated 16th February 2009 passed by the learned Trial Judge on an application made by the petitioner-plaintiff. A contention was raised in the application that the witness who was examined by the petitioner-plaintiff is not expected to answer every question put in the cross examination in Yes or No form and is entitled to make a voluntary statement which has to be recorded by the court. The prayer in the application made by the petitioner was that the voluntary statement/explanation/clarification of the said witness may be recorded by the court. Another prayer in the 2 application is that an opportunity to give proper answers may be given to the witness. By passing the impugned order, the learned Judge observed that there is no provision for recording a voluntary statement made by the witness. The learned Judge observed that if the witness was unable to answer any question in the cross examination in Yes or No form the court can record the same in the question and answer form. The learned trial Judge observed that if there is any ambiguity, the right to re-examine the witness is always available. 2 The learned counsel for the petitioner submitted that the voluntary statements made by the witness during the cross examination have to be recorded by the court. He submitted that the learned trial Judge has committed an error by making an aforesaid observation. He invited my attention to Rule 4 as well as rule 1 of Order XVIII of the Code of Civil Procedure,1908 and submitted that the court cannot decline to record the voluntary statements made by the witness during the course of his cross examination. 3 The learned counsel for the respondents submitted that the order impugned is purely interlocutory in nature and therefore, no interference is called for at this stage, when the suit is already part heard. He submitted that the trial court has clarified that in the event the 3 witness is unable to answer any question, a recourse can be taken to rule 10 of Order XVIII by recording cross examination in question and answer form. He submitted that in the application made by the petitioner on which the impugned order has been passed, the petitioner has not set out any facts warranting interference by this court and the averments made therein are averments of general nature without referring to any particular voluntary statement allegedly made by the witness. 4 I have considered the submissions. The relevant portion of the impugned order reads thus : ...There is no provision for recording voluntary statement stated by the witness whenever he is under cross examination. However, it is usual practice that if the witness enable to answer the question then it would be recorded in question and answer form. Further whenever there is any ambiguity the parties had right of reexamination... 5 As a proposition of law, it cannot be laid down that the court cannot record a voluntary statement made by the witness during his cross examination. If the voluntary statement is relevant, the court will have to record the statement of the witness by specifically recording that 4 the witness has volunteered to make such a statement. 6 The trial court has rightly held that in the event the witness is unable to answer any question in Yes or No form, the examination of the said witness can be recorded in question or answer form. 7 The application made by the petitioner is certainly vague and the petitioner has not come out with a case that a specific voluntary statement sought to be made by the witness was not recorded by the court or that the court declined to record the said statement. On the basis of the averments made in the application, no interference can be made. However, it needs to be clarified that if the witness makes a voluntary statement during the course of his cross examination, the court has to record the said statement provided the said statement is found to be relevant. 8 Subject to what is observed above, no case for interference is made out. Writ Petition is rejected. JUDGE