– 1 -- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 431 OF 2009. SHRI PASCOAL J. BARRETTO AND ANR. …...PETITIONERS. VERSUS SHRI MANUEL AGNELO BARRETTO …....RESPONDENT. Mr. V. G. P. Dukle, Advocate for the Petitioners. Mr. P.A. Kamat, Advocate for the Respondent. Coram: N. A. BRITTO, J. Date:- 1 st April, 2010. P.C.: Heard. Petitioners are defendants in R.C.S. No. 163/07/C. 2. Challenge in this Writ Petition is to the orders passed in RCS No.163/2007/C dated 24/11/2006, 29/11/2006, 3/02/2007, 23/03/2007, 25/03/2009 and 20/04/2009. 3. Plaintiff's evidence was closed on 24/11/2006 on fourth occasion. In other words, prior to that the defendants were given three – 2 -- opportunities to cross-examine the plaintiff. 4. The defendants began their evidence on 13/03/2008 and the same has been closed and now the Civil Suit has proceeded for final arguments. The petitioners/defendants took time on 9/04/2007 to challenge all previous orders before this Court, but took no action thereafter to challenge the same. The learned Civil Judge has set out in order dated 20/04/2009, as to how all previous applications filed by the defendants, either to recall the plaintiff or to review the orders passed, came to be rejected. 5. Counsel on behalf of the defendants submits, when asked as to why the defendants did not challenge all the previous orders before they began with their evidence on 13/03/2008, that they thought that the plaintiff might not have cross-examined the defendants on facts stated by them. It may be true that at one stage, the suit of the plaintiff was transferred from one Court to another, but that certainly did not prevent the defendants from challenging the orders which came to be passed right from 24/11/2006. 6. Counsel on behalf of the petitioners/defendants relying – 3 -- on para 32 of Salem Advocates Bar Association V/s. Union of India (2005(5) ALL MR (S.C.) 876) has submitted that the Court could have granted an opportunity to cross examine the plaintiff or his witnesses, resorting to imposition of higher costs. On the other hand, Shri Kamat on behalf of the plaintiffs, has filed a list of various adjournments sought by the defendants before the learned trial Court and has also placed reliance on a decision of the Apex Court in the case of Vadiraj Naggappa Vernekar (dead) through LR's V/s. Sharadchandra Prabhakar Gogate (2009 (4) SCC 410), particularly, para 25 and 30, wherein it is states as follows; 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. – 4 -- 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. 7. Counsel on behalf of the petitioners has also placed reliance on the decision of this Court in the case of Shri Ramakant Palayekar & Anr. V/s. Mr. Amacio Antonio Albuquerque (dec.) through heirs (1998 (2) Goa L.T. 389) wherein on facts the order closing the cross-examination was set aside. 8. It can be seen from the list filed by the plaintiffs of various adjournments taken by the defendants that the cross- examination of the plaintiff was closed on the fourth occasion and all that the defendants did was to file applications in terms of Section 151 CPC from time to time to recall that order but made no efforts to assail the same in the higher forum. As already stated the defendants – 5 -- began with their evidence on 13/03/2008 and closed the same. This is certainly not the case, as contended by Shri Dukle that the defendants have been deprived of an opportunity to cross-examine the plaintiff or the plaintiff's witness. In my view, it is a case where the defendants have failed to avail several opportunities given to them to cross- examine the plaintiffs. In fact the learned trial Court has observed that the defendants have adopted dilatory tactics only to delay the case. Nothing prevented the defendants from challenging the order dated 24/11/2006 before this Court with some diligence and promptness As already noted, the plaintiffs had even taken time to challenge the same but did not. Then the defendants began with their own evidence and completed the same. The reason assigned on behalf of the petitioners/defendants that they chose not to assail the said orders prior to their beginning with the defence evidence, because they thought that the plaintiffs would not cross-examine them on certain aspects which were stated by the plaintiffs, simply cannot be accepted. 9. This petition suffers from delay and latches. The application dated 25/3/2009 on which the impugned order dated 20.4.2009 has been passed, also appears to have been casually filed. – 6 -- 10. There is no merit in this writ petition and consequently the same is hereby dismissed. N. A. BRITTO, J. NH