Normally, it
is for the parties to the suit to decide which evidence
to be led and which witness to be examined. Section 120
of the Evidence Act shows that the parties to the Civil
Suit and their wives or husbands shall be competent
witnesses. In the present case the Plaintiff No 2, apart
from being the wife is also the power of attorney holder
of the Plaintiff No. 1. She had expressed willingness to
examine herself on behalf of the Petitioner. The only
question is whether a breach of the Order (passed at the
instance of the Respondents/Defendants permitting recall
of the Plaintiff No. 1 for cross-examination) would
entail consequences under Order 39 Rule 11 CPC or the
failure to remain present for cross-examination in such
case, would only entitle the Court to draw adverse
inference if any, as may be permissible in the facts and
circumstances of the case. In my considered view, the
Order passed at the instance of one of the parties to the
suit seeking recall of a witness of the adversary for
subjecting such witness for cross-examination cannot be
an Order which is contemplated under Order 39 Rule 11 of
CPC. The Court in adversarial litigation only acts on
the basis of the request by one of the parties seeking to
recall a witness for subjecting such witness for crossexamination.
This cannot be said to be an Order by which
Court has directed to do or not to do a thing during the
pendency of the suit.
6. It is not necessary to express any opinion as to
what would be the nature of orders, the breach of which,
would entail consequences under Order 39 Rule 11 of CPC.
For the present purpose suffice it to mention, that in
the present case the only course open to the
Respondents/Defendants in this case would be to insist
for drawing appropriate adverse inference, if any.
7. In the given facts it would not be necessary to
refer to the decisions relied upon in details. In the
case of Sheshrao Ingale (supra) it has been held that
striking out defence does not necessarily mean that
plaintiff's suit automatically stands decreed. In the
case of Ganpat Shankar Waghmare (supra) it has been held
that a breach of direction issued by Court results into
defence of the defendants being struck of and the
defendant would have no right to cross-examine the
plaintiff or his witnesses. In the case of Sitabai Kerba
Deotarse (supra) there was an Order passed restraining
the defendant nos. 4 to 10 from alienating the suit
property and there was no serious dispute that subsequent
thereto the property was transferred by defendant no. 4
to 10. The case of Ratnakar D. Patade (supra) has been
since overruled by the division bench of this Court, in
the case of Ramavatar Surajmal Modi (supra). The
division bench of this Court holds that the word 'may' in
sub-rule (1) of Rule 11 of Order 39 of the CPC merely
vests power in the Court to stike of defence. It does
not oblige it to do so in every case of default. It can
thus be seen that the division bench has held that the
power under Order 39 Rule 11 is discretionary and it is
not mandatory for the court in every case to pass such
order. I find that the impugned order proceeds on the
erroneous assumption that breach of the order recalling a
witness would entail consequences under Order 39 Rule 11
of the Code of Civil Procedure when, in fact, this may
only result in the Court drawing appropriate adverse
inference (in the event the witness remains absent). In
the facts and circumstances of the case, I find that the
impugned order cannot be sustained and will have to be
set aside.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 711 OF 2015.
Shri Augustinho C. Braganza
V/s
Shri. Sebastiao C. Braganza
Coram:- C. V. BHADANG, J.
Pronounced on: 04.05.2016
Citation: 2016(5) ALLMR234
Rule. Rule made returnable forthwith. The learned
Counsel for the Respondents waive service. Heard finally
by consent of the parties.
2. By this petition the Petitioners who are original
plaintiffs are challenging the Order dated 30.06.2015
passed by the learned Civil Judge Junior Division at
Panaji in Regular Civil Suit No. 3/2006/D. By the
impugned order application Exhibit-78 filed by the
Respondent/Defendant has been allowed and the suit of the
Petitioner is dismissed.
3. The brief facts are that the Petitioners have
instituted the aforesaid suit against the Respondents for
partition and other reliefs in which the Petitioner No. 1
was examined as PW-1. It appears that the Respondents
had moved an amendment in respect of certain document
which was permitted to be produced on record.
Thereafter, Respondent applied to the learned Trial Court
to recall PW-1 for cross-examination which was allowed.
Indisputably, the said Order has been confirmed by this
Court in Writ Petition No. 492/2014 on 20.02.2015. Be
that as it may, in the meantime, PW-1 had taken over
overseas assignment and inspite of grant of various
opportunites, he did not remain present before the Court
for cross-examintion. The Plaintiff No. 2 who is the
wife of Plaintiff no. 1 (PW-1) and also his power of
attorney holder had shown willingness to examine herself
instead of PW-1. The Trial Court found that this only
showed that PW-1 had no intention to comply the Order of
the Court and is deliberately evading the process. The
Trial Court also found that no plausible explanation has
come forth from the Plaintiff's side to “hold differently
and to take a lenient view of the matter”. It was in
these circumstances that an application Exhibit-78 filed
by the Respondents for dismissal of the suit has found
favour with the Trial Court whereby the suit has been
dismissed purportedly under Order 39 Rule 11 of CPC. The
Trial Court has found that under Order 39, Rule 11 when
the Court orders any party to do or not to do a thing
during the pendency of suit and the party commits default
or contravenes the Order, the provisions of Order 39 Rule
11 can be invoked. The Trial Court has also referred to
definition of an 'Order' as appearing under section
2(14)of CPC to mean a formal expression of decision of
Civil Court, which is not a decree. The Trial Court has
thus found that the Order dated 11.10.2013 by which the
PW-1 was recalled, falls within the definition of Order
and it would be an interlocutory Order, breach of which
would entail consequences under Order 39 Rule 11 of CPC.
4. I have heard learned Counsel for the Petitioners and
the learned Counsel appearing for the Respondents. The
learned Counsel for the Petitioner has placed reliance on
various decisions as under:
(i) Sheshrao Raibhan Ingale v/s. Shilpa
Sheshrao Ingale, reported in 2005(2) ALL
MR 184.
(ii) Ramavatrao Surajmal Modi V/s. Mulchand
Surajmal Modi, reported in 2004(1) ALL MR
822.
(iii)Ganpat Shankar Waghmare v/s. Smt.
Anjalibai Rao Waghmare & Anr., reported in
2001 (3) ALL MR 149.
(iv)Sitabai Kerba Deotarse And Ors. V/s. Anil
Sabehrao Deotarse And Ors., reported in
2006 (5) BomCR 833.
(v) Ratnakar D. Patade V/s. Smita Pandurang
Dalvi And Ors., reported in AIR 1996 Bom 69.
He submits that failure to attend in pursuance of an
Order of recall cannot lead to the consequences under
Order 39 Rule 11 of CPC.
5. The learned Counsel for the Respondents supports the
impugned order. I have considered the rival
circumstances and the submissions made and I do not find
that the impugned order can be sustained. Normally, it
is for the parties to the suit to decide which evidence
to be led and which witness to be examined. Section 120
of the Evidence Act shows that the parties to the Civil
Suit and their wives or husbands shall be competent
witnesses. In the present case the Plaintiff No 2, apart
from being the wife is also the power of attorney holder
of the Plaintiff No. 1. She had expressed willingness to
examine herself on behalf of the Petitioner. The only
question is whether a breach of the Order (passed at the
instance of the Respondents/Defendants permitting recall
of the Plaintiff No. 1 for cross-examination) would
entail consequences under Order 39 Rule 11 CPC or the
failure to remain present for cross-examination in such
case, would only entitle the Court to draw adverse
inference if any, as may be permissible in the facts and
circumstances of the case. In my considered view, the
Order passed at the instance of one of the parties to the
suit seeking recall of a witness of the adversary for
subjecting such witness for cross-examination cannot be
an Order which is contemplated under Order 39 Rule 11 of
CPC. The Court in adversarial litigation only acts on
the basis of the request by one of the parties seeking to
recall a witness for subjecting such witness for crossexamination.
This cannot be said to be an Order by which
Court has directed to do or not to do a thing during the
pendency of the suit.
6. It is not necessary to express any opinion as to
what would be the nature of orders, the breach of which,
would entail consequences under Order 39 Rule 11 of CPC.
For the present purpose suffice it to mention, that in
the present case the only course open to the
Respondents/Defendants in this case would be to insist
for drawing appropriate adverse inference, if any.
7. In the given facts it would not be necessary to
refer to the decisions relied upon in details. In the
case of Sheshrao Ingale (supra) it has been held that
striking out defence does not necessarily mean that
plaintiff's suit automatically stands decreed. In the
case of Ganpat Shankar Waghmare (supra) it has been held
that a breach of direction issued by Court results into
defence of the defendants being struck of and the
defendant would have no right to cross-examine the
plaintiff or his witnesses. In the case of Sitabai Kerba
Deotarse (supra) there was an Order passed restraining
the defendant nos. 4 to 10 from alienating the suit
property and there was no serious dispute that subsequent
thereto the property was transferred by defendant no. 4
to 10. The case of Ratnakar D. Patade (supra) has been
since overruled by the division bench of this Court, in
the case of Ramavatar Surajmal Modi (supra). The
division bench of this Court holds that the word 'may' in
sub-rule (1) of Rule 11 of Order 39 of the CPC merely
vests power in the Court to stike of defence. It does
not oblige it to do so in every case of default. It can
thus be seen that the division bench has held that the
power under Order 39 Rule 11 is discretionary and it is
not mandatory for the court in every case to pass such
order. I find that the impugned order proceeds on the
erroneous assumption that breach of the order recalling a
witness would entail consequences under Order 39 Rule 11
of the Code of Civil Procedure when, in fact, this may
only result in the Court drawing appropriate adverse
inference (in the event the witness remains absent). In
the facts and circumstances of the case, I find that the
impugned order cannot be sustained and will have to be
set aside.
8. In the result, the following Order is passed:
O R D E R
(i) The writ petition is allowed. The impugned
order is hereby set aside.
(ii) Regular Civil Suit No. 3/2006/D is restored to
file of the learned Civil Judge Senior Division at
Panaji for disposal according to law. It would be
open for the learned Trial Court to pass appropriate
orders closing the deposition of PW-1 in view of his
failure to attend for subjecting himself to further
cross-examination. However, the Trial Court will
have to permit the Plaintiffs to lead any other
evidence, if so tendered.
iii) It will also be open for the Trial Court to
draw appropriate adverse inference, if any, on
account of the failure of the Petitioner to subject
himself to further cross-examination, which can be
done at the final disposal of the Suit.
(iii) Rule is made absolute in the aforesaid terms,
with no order as to costs.
C. V. BHADANG, J.
Print Page
is for the parties to the suit to decide which evidence
to be led and which witness to be examined. Section 120
of the Evidence Act shows that the parties to the Civil
Suit and their wives or husbands shall be competent
witnesses. In the present case the Plaintiff No 2, apart
from being the wife is also the power of attorney holder
of the Plaintiff No. 1. She had expressed willingness to
examine herself on behalf of the Petitioner. The only
question is whether a breach of the Order (passed at the
instance of the Respondents/Defendants permitting recall
of the Plaintiff No. 1 for cross-examination) would
entail consequences under Order 39 Rule 11 CPC or the
failure to remain present for cross-examination in such
case, would only entitle the Court to draw adverse
inference if any, as may be permissible in the facts and
circumstances of the case. In my considered view, the
Order passed at the instance of one of the parties to the
suit seeking recall of a witness of the adversary for
subjecting such witness for cross-examination cannot be
an Order which is contemplated under Order 39 Rule 11 of
CPC. The Court in adversarial litigation only acts on
the basis of the request by one of the parties seeking to
recall a witness for subjecting such witness for crossexamination.
This cannot be said to be an Order by which
Court has directed to do or not to do a thing during the
pendency of the suit.
6. It is not necessary to express any opinion as to
what would be the nature of orders, the breach of which,
would entail consequences under Order 39 Rule 11 of CPC.
For the present purpose suffice it to mention, that in
the present case the only course open to the
Respondents/Defendants in this case would be to insist
for drawing appropriate adverse inference, if any.
7. In the given facts it would not be necessary to
refer to the decisions relied upon in details. In the
case of Sheshrao Ingale (supra) it has been held that
striking out defence does not necessarily mean that
plaintiff's suit automatically stands decreed. In the
case of Ganpat Shankar Waghmare (supra) it has been held
that a breach of direction issued by Court results into
defence of the defendants being struck of and the
defendant would have no right to cross-examine the
plaintiff or his witnesses. In the case of Sitabai Kerba
Deotarse (supra) there was an Order passed restraining
the defendant nos. 4 to 10 from alienating the suit
property and there was no serious dispute that subsequent
thereto the property was transferred by defendant no. 4
to 10. The case of Ratnakar D. Patade (supra) has been
since overruled by the division bench of this Court, in
the case of Ramavatar Surajmal Modi (supra). The
division bench of this Court holds that the word 'may' in
sub-rule (1) of Rule 11 of Order 39 of the CPC merely
vests power in the Court to stike of defence. It does
not oblige it to do so in every case of default. It can
thus be seen that the division bench has held that the
power under Order 39 Rule 11 is discretionary and it is
not mandatory for the court in every case to pass such
order. I find that the impugned order proceeds on the
erroneous assumption that breach of the order recalling a
witness would entail consequences under Order 39 Rule 11
of the Code of Civil Procedure when, in fact, this may
only result in the Court drawing appropriate adverse
inference (in the event the witness remains absent). In
the facts and circumstances of the case, I find that the
impugned order cannot be sustained and will have to be
set aside.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 711 OF 2015.
Shri Augustinho C. Braganza
V/s
Shri. Sebastiao C. Braganza
Coram:- C. V. BHADANG, J.
Pronounced on: 04.05.2016
Citation: 2016(5) ALLMR234
Rule. Rule made returnable forthwith. The learned
Counsel for the Respondents waive service. Heard finally
by consent of the parties.
2. By this petition the Petitioners who are original
plaintiffs are challenging the Order dated 30.06.2015
passed by the learned Civil Judge Junior Division at
Panaji in Regular Civil Suit No. 3/2006/D. By the
impugned order application Exhibit-78 filed by the
Respondent/Defendant has been allowed and the suit of the
Petitioner is dismissed.
3. The brief facts are that the Petitioners have
instituted the aforesaid suit against the Respondents for
partition and other reliefs in which the Petitioner No. 1
was examined as PW-1. It appears that the Respondents
had moved an amendment in respect of certain document
which was permitted to be produced on record.
Thereafter, Respondent applied to the learned Trial Court
to recall PW-1 for cross-examination which was allowed.
Indisputably, the said Order has been confirmed by this
Court in Writ Petition No. 492/2014 on 20.02.2015. Be
that as it may, in the meantime, PW-1 had taken over
overseas assignment and inspite of grant of various
opportunites, he did not remain present before the Court
for cross-examintion. The Plaintiff No. 2 who is the
wife of Plaintiff no. 1 (PW-1) and also his power of
attorney holder had shown willingness to examine herself
instead of PW-1. The Trial Court found that this only
showed that PW-1 had no intention to comply the Order of
the Court and is deliberately evading the process. The
Trial Court also found that no plausible explanation has
come forth from the Plaintiff's side to “hold differently
and to take a lenient view of the matter”. It was in
these circumstances that an application Exhibit-78 filed
by the Respondents for dismissal of the suit has found
favour with the Trial Court whereby the suit has been
dismissed purportedly under Order 39 Rule 11 of CPC. The
Trial Court has found that under Order 39, Rule 11 when
the Court orders any party to do or not to do a thing
during the pendency of suit and the party commits default
or contravenes the Order, the provisions of Order 39 Rule
11 can be invoked. The Trial Court has also referred to
definition of an 'Order' as appearing under section
2(14)of CPC to mean a formal expression of decision of
Civil Court, which is not a decree. The Trial Court has
thus found that the Order dated 11.10.2013 by which the
PW-1 was recalled, falls within the definition of Order
and it would be an interlocutory Order, breach of which
would entail consequences under Order 39 Rule 11 of CPC.
4. I have heard learned Counsel for the Petitioners and
the learned Counsel appearing for the Respondents. The
learned Counsel for the Petitioner has placed reliance on
various decisions as under:
(i) Sheshrao Raibhan Ingale v/s. Shilpa
Sheshrao Ingale, reported in 2005(2) ALL
MR 184.
(ii) Ramavatrao Surajmal Modi V/s. Mulchand
Surajmal Modi, reported in 2004(1) ALL MR
822.
(iii)Ganpat Shankar Waghmare v/s. Smt.
Anjalibai Rao Waghmare & Anr., reported in
2001 (3) ALL MR 149.
(iv)Sitabai Kerba Deotarse And Ors. V/s. Anil
Sabehrao Deotarse And Ors., reported in
2006 (5) BomCR 833.
(v) Ratnakar D. Patade V/s. Smita Pandurang
Dalvi And Ors., reported in AIR 1996 Bom 69.
He submits that failure to attend in pursuance of an
Order of recall cannot lead to the consequences under
Order 39 Rule 11 of CPC.
5. The learned Counsel for the Respondents supports the
impugned order. I have considered the rival
circumstances and the submissions made and I do not find
that the impugned order can be sustained. Normally, it
is for the parties to the suit to decide which evidence
to be led and which witness to be examined. Section 120
of the Evidence Act shows that the parties to the Civil
Suit and their wives or husbands shall be competent
witnesses. In the present case the Plaintiff No 2, apart
from being the wife is also the power of attorney holder
of the Plaintiff No. 1. She had expressed willingness to
examine herself on behalf of the Petitioner. The only
question is whether a breach of the Order (passed at the
instance of the Respondents/Defendants permitting recall
of the Plaintiff No. 1 for cross-examination) would
entail consequences under Order 39 Rule 11 CPC or the
failure to remain present for cross-examination in such
case, would only entitle the Court to draw adverse
inference if any, as may be permissible in the facts and
circumstances of the case. In my considered view, the
Order passed at the instance of one of the parties to the
suit seeking recall of a witness of the adversary for
subjecting such witness for cross-examination cannot be
an Order which is contemplated under Order 39 Rule 11 of
CPC. The Court in adversarial litigation only acts on
the basis of the request by one of the parties seeking to
recall a witness for subjecting such witness for crossexamination.
This cannot be said to be an Order by which
Court has directed to do or not to do a thing during the
pendency of the suit.
6. It is not necessary to express any opinion as to
what would be the nature of orders, the breach of which,
would entail consequences under Order 39 Rule 11 of CPC.
For the present purpose suffice it to mention, that in
the present case the only course open to the
Respondents/Defendants in this case would be to insist
for drawing appropriate adverse inference, if any.
7. In the given facts it would not be necessary to
refer to the decisions relied upon in details. In the
case of Sheshrao Ingale (supra) it has been held that
striking out defence does not necessarily mean that
plaintiff's suit automatically stands decreed. In the
case of Ganpat Shankar Waghmare (supra) it has been held
that a breach of direction issued by Court results into
defence of the defendants being struck of and the
defendant would have no right to cross-examine the
plaintiff or his witnesses. In the case of Sitabai Kerba
Deotarse (supra) there was an Order passed restraining
the defendant nos. 4 to 10 from alienating the suit
property and there was no serious dispute that subsequent
thereto the property was transferred by defendant no. 4
to 10. The case of Ratnakar D. Patade (supra) has been
since overruled by the division bench of this Court, in
the case of Ramavatar Surajmal Modi (supra). The
division bench of this Court holds that the word 'may' in
sub-rule (1) of Rule 11 of Order 39 of the CPC merely
vests power in the Court to stike of defence. It does
not oblige it to do so in every case of default. It can
thus be seen that the division bench has held that the
power under Order 39 Rule 11 is discretionary and it is
not mandatory for the court in every case to pass such
order. I find that the impugned order proceeds on the
erroneous assumption that breach of the order recalling a
witness would entail consequences under Order 39 Rule 11
of the Code of Civil Procedure when, in fact, this may
only result in the Court drawing appropriate adverse
inference (in the event the witness remains absent). In
the facts and circumstances of the case, I find that the
impugned order cannot be sustained and will have to be
set aside.
8. In the result, the following Order is passed:
O R D E R
(i) The writ petition is allowed. The impugned
order is hereby set aside.
(ii) Regular Civil Suit No. 3/2006/D is restored to
file of the learned Civil Judge Senior Division at
Panaji for disposal according to law. It would be
open for the learned Trial Court to pass appropriate
orders closing the deposition of PW-1 in view of his
failure to attend for subjecting himself to further
cross-examination. However, the Trial Court will
have to permit the Plaintiffs to lead any other
evidence, if so tendered.
iii) It will also be open for the Trial Court to
draw appropriate adverse inference, if any, on
account of the failure of the Petitioner to subject
himself to further cross-examination, which can be
done at the final disposal of the Suit.
(iii) Rule is made absolute in the aforesaid terms,
with no order as to costs.
C. V. BHADANG, J.
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