Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 561-19 in Summary Suit no. 4947-07
1 Date : 19.11.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 561 OF 2019
IN
SUMMARY SUIT NO. 2998 OF 2015
(CNR NO.MHCC010014502019 )
Navnath Palande .. Plaintiff
Versus
Malabar Hill Citizens Forum & Ors. .. Defendants
Appearances :
Adv.N.H.Joshi for plaintiff present.
Adv.Kalpesh Joshi a/w Nisha Shah for defendant no.1 to 9 and
11 and 12 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 19.11.2019
ORDER
1. The defendants have filed instant Notice of Motion for
recalling of plaintiff witness no. 1 Mr. Navnath Palande for further
crossexamination and to set aside closing crossexamination of
PW 1.
2. It is contended by the defendants that on 18.03.2016
plaintiff filed Affidavit on Evidence alongwith the compilation of
documents. On 07.09.2018 the crossexamination of PW 1 was
conducted by Ms. Sonal, Counsel for the defendants. On
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04.10.2018, crossexamination was continued but due to paucity
of time crossexamination was deferred to 02.11.2018. However,
on 02.11.2018 due to personal difficulty of PW 1, the cross
examination could not commenced and matter adjourned to
11.01.2019. Further, on 11.01.2019 the Counsel was held up
before Hon’ble High Court. Therefore, on behalf of the Counsel,
Jr. Advocate requested for adjournment or to keep the matter in
afternoon session. Therefore, this Court kept the matter in
afternoon session at 3.30 p.m.
3. It is further contended that, in the aforesaid matter
designated senior advocate namely Shri. B.A. Desai is
administering the crossexamination. On that day the Counsel Ms.
Sonal could not remain present therefore, defendant no. 1 took
message from senior Counsel Shri. B.A.Desai that after asking
some questions she should apply for time. However, the said
message could not conveyed to advocate on time. Advocate Nisha
Shah who has began the crossexamination and due to miss
communication, she completed the crossexamination and
therefore, this Court recorded that ‘crossexamination is
completed’.
4. The defendant no. 1 further submitted that due to he was
having urgent work he could not remain present during cross
examination conducted by advocate Nisha Shah. However, after
perusing the evidence taken by the advocate Nisha Shah, it was
transpired that this Court completed the crossexamination of the
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witness. But due to misscommunication, the crossexamination
ought not to have completed by the advocate Nisha Shah. In fact,
the crossexamination of PW1 is remain on the basic issue.
5. It is contended by the defendants that this Court have every
power under Section 151 of the Code of Civil Procedure in the
interest of justice to recall the witness. It is due to miss
communication of the advocate, the court recorded ‘cross
examination is completed’. It is fit case to allow the defendants to
further crossexamine the plaintiff witness. Defendant is the Public
Charitable Trust, therefore, it is duty of defendant no. 1 that
litigation should be defended in the public interest and in the
interest of Trust. Therefore, the defendants prayed for allowing
them to conduct further crossexamination of the plaintiff witness
in exercise of the inherent powers of this Court.
6. It is contended by the defendants that PW 1 during his cross
examination has agreed to produced the purported Agreement
executed between the parties, whereby the plaintiff was allowed to
provide coaching on Sunday. Therefore, it would be necessary to
further cross examine the plaintiff witness upon proceeding the
said Agreement. The plaintiff till date did not close their side nor
filed further evidence of another witnesses. Therefore, defendant
contended that in the event, witness is recalled, no harm or
prejudice would caused to the plaintiff. The defendants are not
going to crossexamined the witness beyond pleadings. Hence,
defendants prayed for allowing Notice of Motion.
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7. Per contra plaintiff opposed Notice of Motion by filing reply.
It is contended by the plaintiff that Notice of Motion is not
maintainable and the same is false, frivolous and mischievous. The
Notice of Motion is devoid of particulars. The defendants took out
Notice of Motion only to protract and delay the proceedings. It is
contended by the plaintiff that the defendant failed to make out
any case for recalling of witness and the ground of mis
communication can not be caused for recalling the witness for
further crossexamination. The advocate appearing on behalf of
the defendants voluntarily proceeded and voluntarily completed
the same.
8. It is further contended by the plaintiff that nonfiling of
closing pursis by the plaintiff does not support against the
defendant to recall witness for crossexamination. Hence, the
plaintiff prayed for rejection of Notice of Motion with cost.
9. The plaintiff by filing additional Affidavit has stated the area
on which they have to crossexamined the witness. It is contended
by the defendant that they have taken specific stand that suit is
barred under Order 2 Rule 2 of CPC. The defendant did not cross
examined the witness on this issue. The defendants further took a
defence that suit is barred under Order 2 Rule 3 of Code. The
plaintiff omitted to claim an amount of Rs. 10,45,000/ which
remained to be put to the plaintiff witness. The defendants further
raised defence that suit is barred under Section 12 of CPC. No
question was put for to the plaintiff witness. The defendants also
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took the specific defence that suit is barred by law of limitation.
Further no question has been asked to PW 1 on the aforesaid
defence.
10. It is further contended by the defendant that plaintiff
contended that letter dated 10.04.2004 amount to
acknowledgment of liability by the defendant. However, the
defendants have specifically denied the same, but there is no
question put to the plaintiff witness.
11. It is further contended by the defendant that the plaintiff
filed suit against Office Bearer and Managing Committee of the
defendant no. 1 who are no way personally liable for the
purported claim of the plaintiff. Therefore, it is clear case of mis
joinder of parties but, no such questions were put to the plaintiff
witness. Thus, it is contended by defendants that they have to
crossexamine PW1 only with reference to the existing pleadings
contained in the plaint and Written Statement and they are not
seeking to open new case. Hence, the defendants prayed for
allowing Notice of Motion.
12. Heard both the sides. Perused Notice of Motion, reply and
additional Affidavit filed by the defendants. The defendants
seeking recalling of plaintiff witness on the ground that on
11.01.2019 although Advocate Nisha Shah had appeared on behalf
of the defendant to conduct further crossexamination but there
was miscommunication. She was not instructed to complete the
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crossexamination but said message could not reach to the
advocate conducting crossexamination.
13. It is vehemently argued by the Ld. Advocate N.H.Joshi for
the plaintiff that there is no provision in the Code for recalling of
the witness. As per Order 18 Rule 17 of CPC, powers given to the
Court to recall the witness to enable it to clarify any issue or doubt
in regard with the evidence laid down by the parties and Court
itself put questions to such witnesses. The defendant no. 1 did not
prayed to this Court to invoke its powers under Order 18 Rule 17
of CPC.
14. It is further argued by the advocate for plaintiff that the
reasons assigned by the defendants to recall the witness does not
give ground to recall the witness either under Order 18 Rule 17 or
under Section 151 of CPC. It is further contended by the plaintiff’s
advocate that the defendant wanted to recall the witness to put
further questions on the legal aspect purportedly on the bar
contained under Order 2 Rule 2 and 3, Section 12 of CPC and on
the limitation, but these questions are of question of law.
Therefore, no prejudice would caused to the defendants if, witness
is not recalled.
15. It is contended by the advocate for plaintiff that defendant
by way of recalling of witness is trying to fill up the lacuna. It is
contended by the advocate of plaintiff that the recalling of witness
under Order 18 Rule 17 contained discretionary power of the
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Court which should be used sparingly in appropriate cases to
enable the Court to clarify any doubts it may have in regard with
to the evidence led by the parties. The power is not intended to be
used to fill up omissions in the evidence of the witness.
16. Per contra Ld. Advocate Nisha Shah for the defendants
vehemently contended that this Court is having every power to
recall the witness under Order 18 Rule 17 as well under Section
151 of CPC. It is contended by the advocate for the defendants
that the material on which crossexamination is not conducted
would be assisting to the Court in clarifying the evidence laid by
the parties and also necessary for just and effective adjudication of
the lease between the parties.
17. Both the sides in support of their contentions have relied on
the judgment of Hon’ble Apex Court reported in (2011) 11
Supreme Court Cases 275 in case of K.K.Velusamy V/s. N.
Palanisami.
18. I have perused above judgment of Hon’ble Apex Court. In
the aforesaid judgment, Hon’ble Apex Court have dealt with
provisions of Order 18 Rule 17, 17(a) and Section 151 of CPC. The
Hon’ble Apex Court in para no. 9, 10 and 11 held that there is no
specific provision in CPC, enabling the parties to reopen the
evidence for further examination in chief or crossexamination.
The power under Order 18 Rule 17 of the CPC is discretionary
power which Court should use sparingly. The aforesaid power is
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not intended to be used to fill up the omission in the evidence.
Under Section 151 of CPC provides that nothing in the Code shall
be deemed to limit or otherwise affect the inherent power of the
Court to make such order as may be necessary for the ends of
justice or to prevent the abuse of the process of the Court.
19 The observation of Hon’ble Apex Court in para no. 9, 10 and
11 are reproduced as under :
Para 9 : Order 18 Rule 17 of the Code enables the
court, at any stage of a suit, to recall any witness
who has been examined (subject to the law of
evidence for the time being in force) and put such
questions to him as it thinks fit. The power to recall
any witness under Order 18 Rule 17 can be
exercised by the Court either on its motion or on an
application filed by any of the parties to the suit
requesting the court to exercise the said power. The
power is discretionary and should be used sparingly
in appropriate cases to enable the court to clarify
any doubts it may have in regard to the evidence led
by the parties. The said power is not intended to be
used to fill up omissions in the evidence of a witness
who has already been examined (Vide Vadiraj
Naggappa Vernekar V/s. Sharadchandra Prabhakar
Gogate).
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Para 10 : Order 18 Rule 17 of the Code is not a
provision intended to enable the parties to recall any
witness for their further examination in chief or
cross examination or to place additional material or
evidence which could not be produced when the
evidence was being recorded. Order 18 Rule 17 is
primarily a provision enabling the court to clarify
any issue or doubt, by recalling any witness either
suo moto, or at the request of any party, so that the
court itself can put questions and elicit answers.
Once a witness is recalled for purposes of such
clarification, it may, of course, permit the parties to
assist it by putting some questions.
Para 11 : There is no specific provision in the Code
enabling the parties to reopen the evidence for the
purpose of further examination in chief or cross
examination. Section 151 of the Code provides that
nothing in the Code shall be deemed to limit or
otherwise affect the inherent powers of the court to
make such orders as may be necessary for the ends
of justice or to prevent the abuse of the process of
the court. In the absence of any provision providing
for reopening of evidence or recall of any witness for
further examination or cross examination, for
purposes other than securing clarification required
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by the court, the inherent power under Section 151
of the Code, subject to its limitation, can be invoked
in appropriate cases to reopen the evidence and / or
recall witnesses for further examination. This
inherent power of the court is not affected by the
express power conferred upon the court under Order
18 Rule 17 of the Code to recall any witness to
enable the court to put such question to elicit any
clarification.
20. The Hon’ble Apex Court further in para no. 16 observed that
“The court did not consider whether the evidence sought to be
produced would either assist in clarifying the evidence led on
the issues or lead to a just and effective adjudication and on the
aforesaid basis the Hon’ble Apex Court set aside the impugned
order rejecting the recall of witness.”
21. Thus, in the present case, I have to assessed whether the
evidence which defendants want to adduced would be for
clarifying issues or lead to the just and effective adjudication. The
plaintiff’s advocate submitted that the area on which the
defendants seek further crossexamination is question of law and
for that purpose witness could not be recalled. I have perused the
crossexamination already conducted by the defendants. In my
view, the defendants have covered the issue of limitation. The
defendants further contended that the PW 1 was came up to file
the copy of Agreement. Moreover, question of issue of Order 2
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Rule 2, 3 and Section 12 are in respect of question of law. For that
purpose I do not find any reason to call the witness for cross
examination. Moreover, the reasons assigned for recalling of
witness is due to miscommunication, Advocate had completed the
crossexamination. She failed to crossexamine on various issues.
In my view, if on such ground witness is recalled, then there would
be no end of crossexamination. In my view, the reasons shown
are not sufficient to invoke inherent powers under Section 151 of
Code and to recall the witness. In my view, there is no substance
in the Notice of Motion and same needs to be rejected. Thus, I
proceed to pass the following order :
ORDER
1. Notice of Motion No. 561 of 2019 is hereby stands rejected.
2. Notice of Motion No. 561 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 19.11.2019 Greater Bombay.
Dictated on : 19.11.2019
Typed on : 20.11.2019
Draft Submitted on : 20.11.2019
Checked on : 23.11.2019
Signed on : 25.11.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
27/11/2019 at 4.45 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
19/11/2019
JUDGMENT/ORDER signed by P.O.
on
25/11/2019
JUDGMENT/ORDER uploaded on 27/11/2019
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