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2012 DIGILAW 253 (BOM)

Eric Fernandes v. Balbir Singh Chabra

2012-02-03

F.M.REIS

body2012
Judgment : 1. Heard Shri Agni, learned Counsel appearing for the Petitioner and Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents. 2. Rule. Heard forthwith, with the consent of the learned Counsel. Learned Counsel appearing for the Respondents, waive service. 3. The above Writ Petition challenges the Order dated 17.03.2011, whereby an application filed by the Petitioner under Order 18 Rule 17 of the Civil Procedure Code to recall Pw.1 and Pw.2 for further cross examination, came to be rejected. 4. Shri Agni, learned Counsel appearing for the Petitioner has assailed the impugned Order essentially on the ground that the learned Judge whilst passing the impugned Order has gone on the assumption that the Court had no powers to recall a witness for cross examination at the instance of a party. The learned Counsel further points out that this aspect is no longer res integra as in the recent Judgment of the Apex Court reported in 2011(3) AllMR 455 (SC) in the case of K. K. Velusamy vs. Balanisamy, the Apex Court has held that such application for recall can be made even at the stage before the final arguments at the instance of the party. He further pointed out that, in any event, it does not preclude the Petitioner to call the opposite party/Plaintiff as his witness so as to produce a document which according to him, the Respondent nos. 1 and 2 are the authors. Learned Counsel further pointed out that the application came to be filed in view of the fact that the Respondents raised an objection for the production of one email message consisting of two letters received by the Petitioner from the Respondent nos. 1 and 2 as well as Ms. Umanda Faria. Learned Counsel further pointed out that the Petitioner has relied upon the said email message along with the list of documents filed along with the written statement and in view of the objections raised by the Respondent nos. 1 and 2 to the productions of the said email message, the Petitioner was forced to file the said application so as to recall the Respondent nos. 1 and 2 to prove the contents of the said document. 1 and 2 to the productions of the said email message, the Petitioner was forced to file the said application so as to recall the Respondent nos. 1 and 2 to prove the contents of the said document. The learned Counsel further pointed out that the learned Judge by an Order dated 28.06.2011 has marked the said message as 'X' subject to proof provided the Petitioner obtain a certificate as contemplated under Section 65-B of the Indian Evidence Act. Learned Counsel further pointed out that the learned Judge has acted with material irregularity whilst passing the impugned Order and, consequently, the same deserves to be quashed and set aside. In support of his submission, the learned Counsel appearing for the Petitioner, has relied upon the Judgment of this Court dated 19.10.2011 passed in Writ Petition no. 652/2011 in the case of M/s. Ravalnath Builders vs. Mrs. Sebastiano Escolastica Beatriz Nunes Mendonsa. 5. On the other hand, Shri Usgaonkar, learned Counsel appearing for the Respondents, has supported the impugned Order and pointed out that the learned Single Judge of this Court in a Judgment reported in AIR 2003 Bombay 293 in the case of BalkrishnaShivappa Shetty vs. Mahesh Nenshi Bhakta & Ors., has come to the conclusion that the application for recall can only be filed at the instance of the Court and no party has a privilege to seek a recall. Learned Counsel further pointed out that the Judgment of the Apex Court relied upon by the Petitioner is not applicable to the facts of the present case as, according to him, the recall in the said case was sought as some documents came in the hand of the party after the evidence of the concerned witness was recorded. The learned Counsel further pointed out that the question of allowing a recall of Pw.1 and Pw.2 only for the purpose of cross examination is an abuse of process of the Court and, as such, the learned Judge has rightly rejected the request made by the Petitioner. Learned Counsel has taken me through the impugned Order and pointed out that the learned Judge has rightly dismissed the application. 6. Learned Counsel has taken me through the impugned Order and pointed out that the learned Judge has rightly dismissed the application. 6. Having heard the learned Counsel and on perusal of the record, considering the Judgment of the Apex Court relied upon by Shri Agni, learned Counsel appearing for the Petitioner in the case of K. K. Velusamy vs. Balanisamy, (supra), I find that it cannot be disputed that an application for recall of a witness can also be filed at the instance of a party. No doubt, the Court will have to exercise discretion in the facts and circumstances of each case. 7. In the present case, the Respondent nos. 1 and 2 themselves have raised an objection to the production of an email message which was admittedly forming part in the list of documents relied upon by the Petitioner. In view of such objection, the Petitioner would have to either recall the concerned witnesses or examine them as their witnesses. This Court, in the case of M/s. Ravalnath Builders vs. Mrs. Sebastiano Escolastica Beatriz Nunes Mendonsa (supra) has held that the defendant can call the plaintiff as his witness to produce the document. Considering the said Judgment of this Court, Shri Agni, learned Counsel appearing for the Petitioner, is justified to contend that even assuming the Petitioner is not permitted to recall Pw.1 and Pw.2 for further cross examination, nevertheless, it does not preclude him from calling such party as his witness. As such, considering the fact that the email message by itself cannot be taken on record unless a certificate is obtained as contemplated under Section 65-B of the Indian Evidence Act, I find that it would be appropriate that the Petitioner should be given liberty to file an appropriate application either to recall/call the concerned parties including the plaintiff as the witnesses, if he so desires in case the said certificate is obtained. In case any such application is filed, the same shall be considered by the learned Judge after hearing the Respondents in accordance with law. 8. In view of the above, I pass the following: ORDER (i) The Petition stands disposed of with liberty to the Petitioner to file an appropriate application in case certificate as provided under Section 65-B of the Indian Evidence Act is obtained by the Petitioner to recall/examination as witness any person including the Respondent nos. 8. In view of the above, I pass the following: ORDER (i) The Petition stands disposed of with liberty to the Petitioner to file an appropriate application in case certificate as provided under Section 65-B of the Indian Evidence Act is obtained by the Petitioner to recall/examination as witness any person including the Respondent nos. 1 and 2 in accordance with law in the light of the observations made herein above. (ii) Rule is disposed of in the above terms.