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.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 374 OF 2011
Eric Fernandes,v Balbir singh chabra dated 3feb 2012
citation;2012(4) MH L J 522
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) ALL MR 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
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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. 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.
4. 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
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293 in the case of Balkrishna Shivappa 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.
5. 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.
6. 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
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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.
7. 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
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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.
F .M. REIS, J.
arp/*
WP-374-11
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