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2012 DIGILAW 12 (BOM)

Chandrakant Gajanan Kore v. Shankar Kamaji Chanal

2012-01-04

R.M.SAVANT

body2012
Judgment Rule. With the consent of the parties made returnable forthwith and heard. 2. The above Petition takes exception to the Order dated 28-1-2011 passed by the Learned Civil Judge Senior Division, Pune, by which Order, the Application filed by the Plaintiff for his re-examination came to be rejected. 3. The Petitioner herein is the original Plaintiff who has filed Special Civil Suit No.780 of 2009 for possession and damages. In the said suit the Plaintiff filed his affidavit of examination-in-chief Exhibit 40 and the cross-examination of the Plaintiff was completed. It appears that upon completion of the cross-examination, the Advocate for the Plaintiff sought permission for re-examination. However, the same was rejected by the Trial Court. The Plaintiff was therefore, constrained to file application Exhibit 47 seeking permission for re-examination, to the said application, a reply was filed by the Respondent herein. The Trial Court i.e. the Learned Civil Judge Senior Division, Pune, has by the impugned order dated 28-1-2011 rejected the said application. While rejecting the said application, the Trial Court has observed that as to why the reexamination of the Plaintiff was not necessary. The Trial Court has observed that during the cross-examination the Plaintiff has said that there is no ambiguity. The Trial Court has further observed that the same question was asked repeatedly by the defence Advocate which the Plaintiff has replied clearly and accepted the same. As indicated above, it is the said Order which is impugned in the present Petition. 4. Heard the Learned Counsel for the parties. 5. In my view, the reasons mentioned by the Trial court for rejecting the said application for re-examination of the Plaintiff are unsustainable. It is for the Plaintiff's Advocate to decide as to whether the re-examination is required or not. At such re-examination, an objection can be taken by the Defendant to the questions that are being put to the Plaintiff in such re-examination, if the said questions transgress the purposes of reexamination. But that would not mean that the Plaintiff is not entitled to his reexamination. In that view of the matter, the impugned order dated 28-1-2011 would have to be quashed and set aside and is accordingly quashed and set aside and resultantly the Application Exhibit 40 is allowed. The Plaintiff would be entitled to reexamine himself in the said suit. But that would not mean that the Plaintiff is not entitled to his reexamination. In that view of the matter, the impugned order dated 28-1-2011 would have to be quashed and set aside and is accordingly quashed and set aside and resultantly the Application Exhibit 40 is allowed. The Plaintiff would be entitled to reexamine himself in the said suit. The Trial Court to fix a date and time for the same and thereafter to proceed in accordance with law. 6. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.