Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3428-19 in SU 3943-09
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.3428 OF 2019
(CNR No.MHCC01-009369-2019 )
IN
SUIT NO.3943 OF 2009.
(CNR No.MHCC01-004107-2009)
Kaizar F. Pithapurwala and Ors. }...PLAINTIFFS.
Versus
Khurshid Safakat Hussain Ladhi and Ors. }...DEFENDANTS.
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Shri.Kapadia, learned advocate for the plaintiffs.
Shri.Shaikh, learned advocate for defendant No.1.
Shri.Sayyed, leaned advocate for defendant No.2.
Shri.Redekar, learned advocate for defendant No.3.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 11/10/2021)
1. By making endorsement on 20/09/2021, learned advocate
for the plaintiffs submitted that plaintiffs are pressing this Notice of
Motion for its prayer Clause-(a) only. Prayer Clause-(a) reads as under;
(a) that the defendant No.3 be directed by this Hon’ble Court to
present himself again for further examination by the advocate for
the plaintiffs.
2. Read the affidavit filed in support of Notice of Motion by
plaintiff and affidavits-in-reply filed by defendant Nos.1 and 3. Heard.
Perused the entire record.
3. Learned advocate for the plaintiffs argued that DW-2, who
is the witness of defendant No.3, has been cross-examined by advocate
for defendant No.1 after said witness was cross-examined by advocate
for the plaintiffs and during cross-examination taken by the advocate
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for defendant No.1, said witness has made certain such statements
which are completely reversing the stand and statements made earlier
by him so also, by the father of said witness in the written statement
filed on behalf of defendant No.3 due to which, it is necessary to recall
said witness for his further examination by advocate for the plaintiffs
and hence, notice of motion deserves to be allowed in terms of its
prayer Clause (a).
4. Reply filed by defendant No.1 shows that defendant No.1
has no objection to allow the Notice of Motion.
5. As against this, learned advocate for defendant No.3
vehemently opposed the Notice of Motion by submitting that advocate
for the plaintiffs has already cross-examined DW-2 (the witness of
defendant No.3) due to which, plaintiffs now are not entitled to take
further cross-examination of the said witness. He argued that relief
claimed is to direct defendant No.3 to present himself for further
examination by the advocate for the plaintiffs and not for taking his
further cross-examination because of which also, Notice of Motion
cannot allowed. He argued that even though the court can recall any
witness at any stage, said recalling does not empower the court to recall
any witness for the purposes of cross-examination by either party and
on that count also, Notice of Motion is liable to be dismissed. In support
of his argument, learned advocate for defendant NO.3 has placed
reliance on the observations of Hon’ble Bombay High Court in a case of
Balkrishna Shivappa Shetty Vs. Mahesh Nenshi Bhakta reported in
AIR
2003 Bom. 293. I have gone through said authority.
6. It is not in dispute that DW-2 of cross-examined by the
advocate for the plaintiffs after which, said witness is cross-examined by
the advocate for the defendant No.1. Advocate for the plaintiffs had
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filed application Exh.12 to recall DW-2 for his re-examination by the
advocate for the plaintiffs and said application has been rejected as per
order dtd.03/08/2019 but with liberty to the plaintiffs to take out
Notice of Motion by giving detailed grounds for claiming the prayers
made in the Notice of Motion. It is, thereafter, this Notice of Motion is
taken out by the plaintiffs.
7. It would be apposite to mention here that in a case of
Balkrishna Shivappa Shetty Vs. Mahesh Nenshi Bhakta cited above,
Hon’ble Bombay High Court is pleased to hold that provisions of law
contained in Order 18 Rule 17 of CPC nowhere empower the court to
allow a party to cross-examine a witness by recalling such witness. It is
laid down that the power to recall a witness for further cross-
examination can be exercised under Section 151 of CPC though may be
true, those inherent powers cannot be exercised to enable the party to
fill the lacuna in evidence and said power is not to be exercised in a
manner which will be contrary to or different from procedure expressly
provided in the Code of Civil Procedure.
8. In the matter in hands, prayer made is to direct defendant
No.3 to present himself for further examination by the advocate for the
plaintiffs. There is no specific prayer to direct defendant No.3 to remain
present for facing further cross-examination by the advocate for the
plaintiffs. Even if it is accepted that the word ‘Cross’ has remained to be
mentioned by mistake in prayer clause-a of the Notice of Motion and as
such, the Notice of Motion is taken out in terms of prayer clause ‘a’ to
recall DW-2 for further cross-examination by the advocate for the
plaintiffs, it will have to be seen whether such a relief can be granted in
favour of the plaintiffs?
9. It appears to be the contention of the plaintiffs that DW-2
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has made contradictory statements than the statements made in
affidavit dtd.30/6/2010 filed in NM No.2632/2009 by deceased father
of the said witness. It further appears to be the contention of the
plaintiffs that the controversy is revolving around the aspect whether
deceased sister of plaintiffs had paid full consideration to the original
defendant No.3 when the present defendant No.3 was minor aged
about 13 years when said transaction took place.
10. It is not in dispute that all those aspects were within the
knowledge of the plaintiffs when DW-2 was cross-examined by learned
advocate for the plaintiffs and hence, those grounds are not sufficient
for accepting the prayer clause-a of the Notice of Motion. As can be seen
from para 5 of the affidavit filed in support of the Notice of Motion, the
main ground for recalling the witness is stated to be that said witness
has made different statements during his cross-examination taken by
the advocate for defendant No.1 than the statements made by him
during his cross-examination taken by the advocate for the plaintiffs.
Said ground is also not a sufficient to recall the said witness for his
further cross-examination even by invoking Section 151 of Civil
Procedure Code because, it does not appear that precaution was taken
on behalf of the plaintiffs to see that said witness is cross-examined first
by the advocate for the defendant No.1 before he is cross-examined by
the advocate for the plaintiffs. Any explanation in that regard is not
offered on behalf of the plaintiffs due to which, this court is of the
opinion that if DW-2 is recalled for his further cross-examination by the
advocate for plaintiffs, it would mean that plaintiffs are permitted to fill
up the lacuna which is not permissible. Having regards to those aspects
and having regards to the fact that the statements made in the affidavit
filed in support of the Notice of Motion are not sufficient for recalling
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DW-2 for his further cross-examination by the advocate for the
plaintiffs, I pass the following order.
O R D E R
Notice of Motion No.3428 of 2019 is dismissed for its
prayer clause ‘a’.
Said Notice of Motion is already not pressed for its prayer
clauses ‘b’ and ‘c’ hence, it is disposed of.
Date : 11/10/2021. (P.P.RAJVAIDYA)
Dictated on : 11/10/2021. Judge, C.R.No.62,
Checked on : 11/10/2021. City Civil Court,
Signed on : 11/10/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
20.10.2021 at 3.35 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 11.10.2021.
Order signed by P.O. on 11.10.2021.
Order uploaded on 20.10.2021.
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