Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M No.3591/2019 in Suit No.2730/2007
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3591 OF 2019
(C.N.R. No. MHCC01-009785-2019)
IN
S. C. SUIT NO. 2730 OF 2007
C.N.R. No. MHCC01-000096-2007)
Jaykaran Baldeo Singh (Since Deceased) ]
Shyam Bahadur Singh and Ors. ]..Plaintiff.
V/s.
1. The State of Maharashtra and Ors. ]..Defendants.
Advocate Ms. Chandramore for the defendant no.1.
Advocate Mr. Dharmendra Joshi for the defendant no.3.
Advocate Mr. Madkaikar for the plaintiff.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 11th MARCH, 2020
ORAL ORDER
This notice of motion is taken out by the defendant no.3 to
recall the plaintiff no.5 for further cross-examination.
2 It is contended by the defendant no.3 that on completion of
cross-examination of the plaintiff no.1, the plaintiff no.5 has filed his
affidavit of his examination-in-chief and he was cross-examined by the
defendants. The defendant nos.1 and 2 declined to lead oral evidence.
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The defendant no.3 has to file his affidavit of his examination in chief.
However, in the meantime, there was settlement talk going on between
the plaintiffs and the defendant no.3 through the mediator. During the
course of negotiation, the defendant no.3 came to know that the
plaintiffs have entered into the Development Agreement dated
30.04.2011 with M/s. Sai Vinayak Realtors and the plaintiffs handed
over photocopy of the said Development Agreement to the defendant
no.3.
3 As such, the defendant no.3 has come across the
Development Agreement and it is necessary for him to cross-examine
the plaintiff no.5 with reference to the said Development Agreement.
Thus, the defendant no.3 prays for cross-examination of the defendant
no.3 to the extent of the said Development Agreement.
4 The plaintiff no.5 has resisted this notice of motion by
filing affidavit-in-reply contending that there is no just ground to recall
the plaintiff no.5 for further cross-examination. The defendant no.3 had
ample opportunity to cross-examine the plaintiff no.5 on all grounds
available to him. He denies attempt of settlement and production of
copy of Development Agreement to the defendant no.3. As such,
Development Agreement has no relevance dispute involved in the suit
and the reliefs asked by the plaintiffs. The defendant no.3 is well aware
of the said Development Agreement and the copy of the said
Development Agreement was in his possession. As such, there is no
need to recall the plaintiff no.5 for further cross-examination on the
said Development Agreement.
5 Heard the learned advocate for both the parties. The
learned advocate for the defendant no.3 submits that had the defendant
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no.3 knowledge of the Development Agreement, the plaintiff no.5 could
have cross-examined on the same. However, it was first time, the
defendant no.3 came across the said Development Agreement. The
defendant no.3 wants to further cross-examine the plaintiff no.5 only
with reference to the said Development Agreement. There is no
question of filling up lacuna or willful omissions to cross-examine the
witness. Therefore, the defendant no.3 is entitled to further cross-
examine the plaintiff no.5.
6 The learned advocate for the plaintiff no.5 has relied on the
Judgment of the Hon’ble Supreme Court in the case of Vadiraj
Nagaappa Vernekar (Dead) through LRs. V/s. Sharadchandra
Prabhakar Gogate [(2009)4 S.C.C.410], wherein the Hon’ble Supreme
Court has held that;
“Order 18 Rule 17 does not permit the use of the
said provision to fill up omission in the evidence of
the witness, who has already been examined. Main
purpose of Order-18 and Rule 17 is to enable the
Court to clarify any doubts that may have arisen
during the course of his examination. The Court
may recall a witness either on its own motion or on
application by any party to the suit. Prejudice is not
a ground for exercise of power by the Court. If
evidence on re-examination of a witness has a
bearing on the ultimate decision of the suit, the Trial
Court may permit recall of such witness for re-
examination-in-chief with permission to the
defendants to cross-examine the witness.”
7 If the facts and the circumstances of the case in hand are
considered with touchstone of the principles laid down in the aforesaid
judgments, it would be crystal clear that there is no case of filling of
omission in the evidence of the witness who has already been
examined. The plaintiffs have not denied the existence of the
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Development Agreement. There is no evidence laid by the plaintiffs as
regards the said Development Agreement. Consequently, there was no
opportunity for the defendant no.3 to cross-examine the plaintiff no.5
with reference to the said Development Agreement. Thus, the case put
by the defendant no.3 that he came across the Development Agreement
after examination of the plaintiff no.5 during settlement talk with the
plaintiffs should be believed.
8 Thus, in such circumstances, it would be just and proper to
allow the defendant no.3 to cross-examine the plaintiff no.5 only with
reference to the Development Agreement dated 30.04.2011. No
prejudice would be caused to the plaintiff no.5 in subjecting him to
further cross-examine. Hence, the order.
ORDER
Notice of Motion No. 3591 of 2019 is made absolute.
2 The plaintiff no.5 is recalled for further cross-examination
by the defendant no.3 only with reference to the Development
Agreement dated 30.04.2011.
3 Notice of Motion No.3591 of 2019 stands disposed of
accordingly.
(S. R. SALUNKHE)
Judge,
City Civil Court,
Date: 11/03/2020. Gr. Bombay.
Dictated on : 11/03/2020
Transcribed on : 11/03/2020
Signed on : 11/03/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11/03/2020 At 05.00 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
11/03/2020
Judgment/Order signed by P.O. on 11/03/2020
Judgment/Order uploaded on 11/03/2020
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