Pradeep Dharma Pawar And Ors vs Dharma Kesu Pawar And Anr
2021 Latest Caselaw 2955 Bom

                                                                   9.35655.17 wpst.doc

ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION

                           WRIT PETITION (ST) NO. 35655 OF 2017

      Pradeep Dharma Pawar and Ors                                ....Petitioners

              V/s.

      Dharma Kesu Pawar and another                               .....Respondents

      Mr. Anant Vadgaonkar for the Petitioners
      Mr. Prasad P. Kulkarni for Respondent no. 1


                               CORAM :   NITIN W. SAMBRE, J.

                               DATE:     FEBRUARY 23, 2021.

      P.C.:

      1]      An Application moved under Section 138 of Indian Evidence Act

for recording of re-examination of the Plaintiff's witness vide Exhibit

91 which came to be rejected vide order dated 14/11/2017.

2] Learned counsel for the Petitioner-Plaintiff would urge that

clarifcation on certain issues which have come on record in the

cross-examination is warranted and that being so, Application

Exhibit 91 came to be moved. According to him, the Court below

9.35655.17 wpst.doc

without considering the scope of Section 138, has rejected the prayer.

3] Learned counsel for the Respondent-Defendant would urge that

order impugned is just and proper and submits that re-examination

cannot be termed to be flling in lacunas/admissions which are

achieved during the cross-exmination.

4]     I have considered rival submissions.




5]     The Apex Court in the matter of Rammi @ Rameshwar etc. V/s.

State of Madhya Pradesh [1999 (8) Supreme 364] in para 16 & 17 has

observed thus:

"16. The very purpose of re-examination is to explain matters which have been brought down in cross- examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It read thus:

"Direction of re-examination. The re-examination shall be directed to the explanation of matters referred to in cross- examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter".

9.35655.17 wpst.doc

17. There is an erroneous impression that re-examination should be confned to clarifcation of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with other provisions. But the Court cannot direct him to confne his questions to ambiguities alone which arose in cross-examination."

6] In the aforesaid background, if the contention raised by the

Petitioner-Plaintiff in Application Exh. 91 is appreciated, it is aptly

clear that Petitioner intends to go for re-examination so as to have

clarifcation on certain issues which were asked in the cross-

examination.

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7] In that view of the matter, order impugned dated 14/11/2017

passed below Exh. 91 in R.C.S. No. 749 of 2011 by the learned Court

of Civil Judge Junior Division, Solapur is not sustainable and is

accordingly quashed and set aside. Application Exhibit 91 stands

allowed.

8] However, it is clarifed that Court shall be sensitive to the

observations made in para 17 of the aforesaid Judgment which is

reproduced herein above, while recording re-examination.

9]     Petition is allowed in the above terms.




                                   [NITIN W. SAMBRE, J.]