Bombay High Court
M/S. Shewalkar Developers Ltd., ... vs Sidartha Sinha S/O. Pratap Sinha ... on 29 June, 2017
Bench: I.K. Jain
wp.1307.16.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1307 OF 2016
M/s. Shewalkar Developers Ltd.,
through its Vice President,
Shri Shabbir s/o Ahmed Khan,
Aged about 54 years, Occ. Service,
Regd. Office at Shewalkar Arcade,
West High Court Road, Laxmi Bhawan Square,
Dharampeth, Nagpur. .... Petitioner
-- Versus -
01] Sidartha Sinha s/o Pratap Sinha,
Aged about 57 years, Occu. : Service,
R/o 171, Shraddhanandpeth,
Near Bank of Baroda, Nagpur
02] Pramod s/o Harishankar Bhargava,
Aged about 72 years, Occu. : Business,
R/o 146, Ramdaspeth, Nagpur.
03] Rajiv s/o Pramod Bhargava,
Aged about 47 years, Occ. Business,
R/o 146, Ramdaspeth, Nagpur.
04] Shivshankar s/o Babulal Khemuka,
Aged about 72 years.
05] Kiran w/o Shivshankar Khemuka,
Aged about 62 years.
06] Sarladevi Parasrampura,
Aged about 61 years.
07] Manju w/o Ashok Parasrampura,
Aged about 59 years.
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wp.1307.16.jud 2
Above respondent Nos.6 to 7 are
R/o 146, Ramdaspeth, Nagpur.
Above Respondent Nos.4 & 5 are
R/o C/o Yash Khemka, Flat No.301,
3rd Floor, Yash Heights, Near Das Jwellers,
North Ambazari Road, Nagpur. .... Respondents
Shri S.P. Dharmadhikari, Senior Advocate with Shri S.O. Ahmed,
Advocate for the Petitioner.
Shri A.G. Gharote, Advocate for Respondents 2, 3 6 & 7.
CORAM : KUM. INDIRA JAIN, J.
DATE : JUNE 29, 2017.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally
with the consent of learned Counsel for the parties.
02] This petition takes an exception to the order dated
30/10/2015 passed below Exh.178 by learned Joint Civil Judge
Senior Division, Nagpur in Special Civil Suit No.543/1999.
03] The facts giving rise to petition may be stated in brief
as under :
I. Petitioner is the original plaintiff. Suit for specific
performance of contract came to be filed before
learned Civil Judge Senior Division, Nagpur.
Respondents are the defendants in suit. On
21/09/2013, PW-1 Madhukar Ukey was cross-
examined by defendants 1 to 3. Defendants 4 to 6
remained absent. None represented them and,
therefore, order of 'no cross' was passed by the trial
court.
II. Thereafter an application [Exh.152] was presented by
defendants 6 & 7 for setting aside 'no cross' order.
The same was allowed. On the same day, a pursis
came to be filed on behalf of defendants 6 & 7
adopting cross-examination of witness by defendants
1 to 3.
III. After filing pursis, another application [Exh.178] was
filed by defendants 6 & 7 for recalling PW-1 Madhukar
Ukey for cross-examination. The main ground raised
in application was that pursis was passed without
seeking instructions from them. Application was
objected by plaintiff. Upon hearing the parties, trial
court vide impugned order dated 30/10/2015 granted
permission to defendants 6 & 7 to cross-examine
plaintiff's witness. It is this order which is the subject
matter of present writ petition.
04] Heard Shri S.P. Dharmadhikari, learned Senior Counsel
for petitioner and Shri A.G. Gharote, learned Counsel for
respondents 2, 3, 6 & 7.
05] Learned Senior Counsel submits that defendants 6 &
7 adopted cross-examination of the witness by pursis and the
same amounts to an admission. Submission is that after filing
pursis and adopting the cross-examination made by defendants
1 to 3, they cannot turn around and say that their case was not
put up in the cross-examination by learned Counsel for
defendants 1 to 3.
06] On the ambit and scope of Order XVIII Rule 17 of the
Code of Civil Procedure, learned Senior Counsel placed reliance
on the decision of the Hon'ble Apex Court in Bagai
Construction vs. Gupta Building Material Store - [(2013)
14 SCC 1] and Vadiraj Naggappa Vernekar vs.
Sharadchandra Prabhakar Gogate - [(2009) 4 SCC 410].
Referring to the above decisions, it is submitted that power
conferred upon Court under Order XVIII Rule 17 of the Code of
Civil Procedure cannot be used to fill up the lacuna, as trial Court
in it's order has clearly observed that there is no substance in
the contention of defendants 6 & 7 that they have not instructed
their counsel. Learned Senior Counsel submits that considering
the scope of Order XVIII Rule 17 of the Code of Civil Procedure,
recalling of witness in the circumstances of the present case is
not permissible and the impugned order being erroneous and
illegal needs to be interfered with in extraordinary jurisdiction.
07] Per contra, Shri A.G. Gharote, learned Counsel for
respondents 6 & 7 referred to application [Exh.178] and
submitted that defendants never instructed their counsel to pass
such pursis and adopt cross-examination made by defendants 1
to 3. According to the learned Counsel, defendants 6 & 7 have
raised a specific defence that they are bona fide purchasers and
suit is barred by limitation. It is submitted that defence raised
by defendants 6 & 7 was never put to witness by learned
Counsel for defendants 1 to 3 and for want of cross-examination
on the defence raised by defendants 6 & 7, their interest is going
to be adversely affected in case witness is not recalled and not
further cross-examined. In support of submission, learned
Counsel placed reliance on the judgment of the Hon'ble Supreme
Court in Himalayan Coop. Group Housing Society vs.
Balwan Singh and others - [(2015) 7 SCC 373] and of this
Court in Writ Petition No.741/2016, dated 21/04/2016.
08] With the assistance of the learned Counsel for the
parties, this Court has gone through the impugned order. It can
be seen from the order that the trial Court has considered the
facts under which pursis came to be passed on behalf of
defendants 6 & 7 and the necessity of recalling the witness to
assist the Court in arriving at the proper conclusion. The learned
Judge has also relied upon the decisions of the Hon'ble Apex
Court in K.K. Vellursamy vs. Palanisamy - [(2011 11 SCC
275] and Himalayan Coop. Group Housing Society vs.
Balwansingh - [(2015) 7 SCC 373], wherein the Hon'ble
Supreme Court had settled the position of law in this regard. It is
held by the Hon'ble Supreme Court that where the application is
found to be bona fide and where the additional evidence, oral or
documentary, will assist the Court to clarify the evidence on the
issues and will assist in rendering justice and the Court is
satisfied that non-production earlier was for valid and sufficient
reasons, the Court may exercise its discretion to recall the
witnesses or permit the fresh evidence.
09] In the case on hand, grievance of defendants 6 & 7 is
that they have set up a specific defence in their written
statement. Written statement filed by defendants 1 to 3 and line
of cross-examination of PW-1 on behalf of defendants 1 to 3
would indicate that their challenge is on termination of
agreement. The case put up by defendants 6 & 7 in their written
statement is that they are bona fide purchasers and the suit is
barred by limitation.
10] From the cross-examination of PW-1 Madhukar, it is
apparent that defence raised by defendants 6 & 7 in their written
statement is not put up to the witness in cross-examination by
defendants 1 to 3. In this background, grievance made by of
defendants 6 & 7 that their interest will be adversely affected
cannot be said to be without substance.
11] So far as the decision of the Hon'ble Supreme Court
on Order XVIII Rule 17 of the Code of Civil Procedure in the cases
of Bagai Construction vs. Gupta Building Material Store
and Vadiraj Naggappa Vernekar vs. Sharadchandra
Prabhakar Gogate (supra) are concerned, it appears that at
the stage of re-examination, application to recall witness was
moved and the Hon'ble Supreme Court observed that witness
cannot be recalled and re-examined in a routine manner.
Needless to state that scope of re-examination is limited to the
extent of removing ambiguity in cross-examination. In the
present case, controversy has arisen at the stage of cross-
examination and not at the stage of re-examination.
12] In the above premise, this Court does not find any
perversity or illegality in the discretion exercised by the trial
Court. No interference is warranted in writ jurisdiction. Hence,
the following order :
ORDER
i. Writ Petition No.1307/2016 stands dismissed.
ii. Rule is discharged with no order as to costs.
*sdw JUDGE
