1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 1197/2011 (Sadashiv A. Rodge VERSUS Bhaudeorao G. Panchbuddhe) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri R.N. Ghuge, counsel for the petitioner. Shri A.K. Choube, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 27 , 2011 . Heard. By this petition, the petitioner impugns the order passed by the trial Court allowing an application filed by the respondent-plaintiff for permission to re-examine the plaintiff. The respondent is the original plaintiff. A suit was filed by the plaintiff against the petitioner-defendant for eviction/possession. It was the case of the plaintiff that the defendant was a tenant in the suit property. The defendant filed the written statement and pleaded that the defendant had given a hand loan to the plaintiff and in view of the hand loan, the plaintiff had given the suit house to the defendant. In such circumstances, according to the defendant, the plaintiff could not have sought a decree for eviction. The parties tendered evidence and the plaintiff tendered his evidence in examination-in-chief. While the plaintiff was being cross-examined, the defendant had called for the withdrawal slips from the bank for pointing out that 2 the plaintiff had withdrawn the amount, which was lying in the account of the defendant and the plaintiff had utilized the same. At that juncture, when the withdrawal slips were called from the bank, the plaintiff applied for grant of permission to adduce evidence on affidavit for giving explanation about the withdrawal slips. This application was opposed by the defendant and the trial Court rejected the application on the ground that the cross-examination was about to be completed and was at its fag end. The Court found that only in case of ambiguity, the witness could have been recalled and since the suit was filed in the year 2003, there was no reason to grant the prayer made in the application. It appears that after the cross-examination of the plaintiff was completed, the plaintiff applied for grant of permission to re-examine himself. It was stated in the application that during his cross-examination, the plaintiff was confronted with the withdrawal slips and the plaintiff desired to give an explanation in regard to the same as the statement made by the plaintiff during the cross-examination was not mentioned in the cross-examination. The trial Court, by the impugned order dated 22.02.2011, allowed the application filed by the plaintiff. On hearing the learned counsel for the parties and on perusal of the impugned order, it appears that in the facts and circumstances of the case, the trial Court did not commit any error in permitting the plaintiff to re-examine himself. The Court found that the withdrawal slips were called from the bank and the said documents were exhibited. 3 The Court further found that at the relevant time, the plaintiff was working as a Manager in the Bank and this fact was not disputed. The Court rightly thought that it was necessary to permit the plaintiff to give explanation as that would not cause any prejudice or surprise to the defendant. The Court observed that in case the plaintiff was re-examined, the defendant also would have been granted an opportunity to further cross-examine the plaintiff. It appears from a perusal of the pleadings of the parties and the evidence tendered on record that the re- examination of the plaintiff was necessary in this case for effectively deciding the controversy between the parties as it was the case of the defendant that the plaintiff had withdrawn the amount in pursuance of the withdrawal slips given by the defendant and it was the case of the plaintiff that this amount was returned to the plaintiff. Hence, for effectively deciding the controversy between the parties, the trial Court rightly exercised the jurisdiction under Order XVIII Rule 17 of the Code of Civil Procedure by allowing the application filed by the plaintiff. The submission made on behalf of the petitioner- defendant that the application filed by the plaintiff for permission to re-examine himself was hit by the principles of Res Judicata and hence, the Court could not have allowed the application by the impugned order is liable to be rejected for the simple reason that the first application was filed by the plaintiff for merely adducing his evidence on affidavit for giving explanation in regard to the withdrawal slips and the subsequent application dated 22.02.2011 was for permission to re-examine himself. Hence, it is clear that the first 4 application was not for re-examination of the plaintiff and the second application was filed for re-examination of the plaintiff after the cross-examination of the plaintiff was completed. The other submission made on behalf of the petitioner that the order is liable to be set aside as the application is allowed only on the ground that it would not cause any prejudice to the defendant, is also liable to be rejected in view of the fact that the Court observed that the cross-examination was completed at that stage, the withdrawal slips were called from the bank, the certified copies were on record and exhibited, the plaintiff was working as a Manager at the relevant time and in case, the application was allowed, in the facts and circumstances of the case, it could not have caused prejudice or surprise to the defendant. Hence, from the above observation, it is clear that the trial Court was of the view that the re-examination of the plaintiff was necessary for effectively deciding the controversy between the parties. The judgments reported in 2009(4) All M.R. 459 (Vadiraj Naggappa Vernekar (deceased by L.Rs. Versus Sharad Chand Prabhakar Gogate) and (2005) 10 SCC 701 (Mishrilal & others Versus State of M.P. & others) are distinguishable on facts and have no applicability to the facts of this case. Since the impugned order is just and proper, the same calls for no interference in exercise of the writ jurisdiction. In the result, the writ petition fails and is dismissed with no order as to costs. 5 JUDGE APTE