Allowed

Aparna Bhagwan Thadani v. Jayashri Ashok Agarwal and Ors.

Bombay HC4 May 2011WP/2400/2011

Case brief

AI extract

What is this about?

Writ petition challenging Small Causes Court order allowing belated application for recall of witness and leading evidence. High Court held trial court erred in allowing reopening of trial at fag end due to negligence and change of counsel, setting aside order and directing conclusion of trial.

What did the court decide?

Impugned order quashed; trial concluded within two months from date of order; Rule made absolute.

Aparna Bhagwan Thadani Vs Jayashri Ashok… — Civil Procedure and Limitation | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.2400 OF 2011

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Ms.Aparna Bhagwan Thadani

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..Petitioner

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Vs.

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Mrs.Jayashri Ashok Agarwal & Ors.

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..Respondents

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Mr.Gaurav Joshi, Mr.Birendra Saraf, Ms.Preeti Ramani i/b. Federal & Rashmikant for Petitioner. Mrs.Pranali Kakade with Mr.Kuldeep V. Nikam for Respondent Nos.1 and 3. Mr.Umakant Aggarwal – respondent No.4 in person.

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CORAM :- B.R.GAVAI,J. DATE :- MAY 4, 2011

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P.C.

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Rule.

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Rule is made returnable forthwith.

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Heard by consent.

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The petitioner-plaintiff takes exception to the order dated 21^st February, 2011 passed by the learned Judge of the Small Causes Court below Exhibit 162 in RAE Suit No.1579/4831 of 1988 thereby allowing the application filed by respondent Nos.1 to 3 for condonation of delay in making the application and for setting aside the order for closing the cross-examination of the plaintiff and defendant No.2 and for further permitting the said defendant to cross-examine the witness of the plaintiff and defendant No.2 and lead their own evidence.

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The petitioner has filed the suit for eviction on the ground of change of user of the suit premises from residential to commercial and on the ground of unlawful sub-letting by original defendant No.1 to defendant No.2. The suit was resisted by defendants by filing written statement. Perusal of the written

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statement would reveal that the grounds raised by both the defendants are almost similar.

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After the issues were framed, the evidence in the suit began in the year 2004. Between 2004 and 31^st January, 2006, the evidence on behalf of the plaintiff was led and the witnesses of the plaintiff were cross-examined by defendant No.2. On 28^th June, 2006, the original defendant No.1 filed his affidavit-in-lieu of examination-in-chief. On 17^th August, 2006, defendant No.1 entered the witness box for cross-examination. When defendant No.1 was partly cross-examined, he died on 18^th June, 2006. Subsequently, respondent Nos.1 to 3 herein were brought on record as legal heirs of original defendant No.1. The defendant No.2, on legal heirs of defendant No.1 being brought on record, filed an additional written statement. In answer to the same, additional written statement was also filed by respondent Nos.1 to 3. In view of the rival pleadings between the legal heirs of original defendant No.1 and defendant No.2, the following additional issue came to be framed.

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“Who is entitled to tenancy rights in respect of under Section 5(11)(c) (i) of the Bombay Rent Act?”

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It was directed by the learned Trial Court, that in so far as this issue is concerned, the defendants were to lead their evidence first and the plaintiff was given opportunity to lead his evidence in rebuttal.

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In June, 2009, respondent No.4 i.e. defendant No.2 filed his affidavit-inlieu of examination-in-chief on the additional issue. The plaintiff crossexamined defendant No.2 in the same month. Earlier, the same Counsel was representing both the defendants. However, after the demise of defendant No. 1, the earlier Advocate continued for defendant No.2 and one M/s.Khaitan & Jaikar, Solicitors and Advocates put in appearance on behalf of the legal heirs of defendant No.1. The lawyer representing the said firm was attending the proceeding on behalf of the said defendant. On 18^th March, 2010, the Counsel appearing on behalf of respondent Nos.1 to 3 filed an application for

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adjournment to cross-examine respondent No.4. However, even on the adjourned date, respondent No.4 was not cross-examined by Counsel for respondent Nos.1 to 3 and as such the evidence of defendant No.2 was closed on 22^nd March, 2010. On 29^th August, 2010, the petitioner-plaintiff led her evidence in rebuttal as per the directions of the learned Trial Court. The witnesses on behalf of the plaintiff were from Hyderabad and had come from Hyderabad to give their evidence. According to the petitioner, even on the said date, though the Counsel for defendant Nos.1 to 3 was present, he did not cross-examine the plaintiff’s witness. On 2^nd December, 2010, the evidence in rebuttal of the plaintiff was closed and the matter was placed for arguments. The arguments in the case were advanced on 13^th January, 2011, 15^th January, 2011 and 27^th January, 2011. The arguments on behalf of petitioner were complete and when the matter was kept for arguments of defendants on 27^th January, 2011, the application on which the impugned order was passed came to be filed. Vide order dated 21^st February, 2011, the said application is allowed. Hence, the present petition.

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Shri Joshi, the learned Counsel appearing for the petitioner submits, that the learned Trial Court has grossly erred in allowing the application which is filed at such a belated stage. He submits that after deletion of Rule 17-A from Order 18 of the Code of Civil Procedure (“the Code”), the only power which would enable the Court to entertain such an application would be under Rule 17 of Order 18. He further submits that the said power is only available to the Court and that the said power is not available to a litigant who has slept over his right for years together and at the fag end of the trial woken up and made such an application. He submitted that the suit is filed in the year 1988 and when after almost a period of 23 years, the suit is likely to be decided, the said application is filed only to protract the trial. The learned Counsel relies on the judgment of the Apex Court in the case of Vadiraj Naggappa Vernekar (dead) through Lrs. Vs. Sharadchandra Prabhakar Gogate 2009 (5) Mh.L.J. 142. The learned Counsel further submitted that the Counsel for respondent

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Nos.1 to 3 having participated in the proceeding throughout, a novel reason is given in the application that earlier Counsel was no more appearing and therefore, such an application was necessary. The learned Counsel further relies on the judgment of the learned Single Judge of this Court n the case of Geenu Rakesh Khurana Vs. Badjate and Company & Anr. 2008(3) Bom.C.R. 542, wherein, in similar situation, this Court had held that such an application cannot be entertained on the ground that the earlier Lawyer was no more appearing in the matter.

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Mrs.Kakade, the learned Counsel appearing on behalf of defendant Nos.1 to 3 on the contrary submits, that the learned Trial Court has exercised its jurisdiction in the interest of justice. She further submits that a litigant cannot be made to suffer on account of lapses on the part of the Counsel. She further submits that no prejudice of any sort is likely to be caused to the petitioner, if respondent Nos.1 to 3 are permitted to lead evidence. She further submits, that on the contrary, if the said respondents are permitted to lead the evidence, the learned Trial Court would be in a position to decide the suit on merits. The learned Counsel, therefore, submits that this is a fit case wherein this Court should not exercise its jurisdiction under Article 227 of the Constitution of India. The learned Counsel relies on the judgment of the learned Single Judge of this Court in the case of Steelage Industries Ltd. Bombay and Anr. Vs. Chander Bagai 1992 Mh.L.J. 857.

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Respondent No.4 who is appearing in-person submits, that since the issue is between the petitioner and respondent Nos.1 to 3, he would not like to submit anything and he would submit to the orders of this Court.

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No doubt that the procedural law is handmade of justice and the procedural law is required to be followed in such a manner which advances the purpose of ultimate justice. The question however, would be as to whether a litigant who has neglected to exercise his right to cross-examine the plaintiff

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and lead his evidence for years together, can be permitted to re-open the case at the fag end of the trial, when the matter is almost at the stage of passing of a judgment and decree. Undoubtedly, the original defendant No.1 has expired on 18^th November, 2006 and thereafter not only the plaintiff has led his evidence but was also cross-examined by respondent No.4. Thereafter the evidence of defendant No.4 was also recorded and he has been cross-examined by plaintiff. Further, the evidence in rebuttal of the plaintiff has also been recorded and thereafter on three dates the matter was kept for hearing on behalf of the plaintiff and on 17^th January, 2011 when the matter was closed for defendant’ arguments, the application in question came to be filed. It is, thus clear that respondent Nos.1 to 3 have been thoroughly negligent in not cross-examining the plaintiff or leading their evidence. It is not the case of the said respondent that they are illiterate or uneducated persons. Perusal of application below Exhibit-162 would reveal that the only ground raised in the application is, that the concerned Advocate in the office of the Advocates of defendant No.1a to 1c who was attending the matter had left the firm in or about September, 2010. It is pertinent to note that though the entire application is typed, a blank is kept against the name of the lawyer and the period during which he has left the office. The name and period has been subsequently written in hand. Apart from this ground, there is no other ground raised in the application.

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As already discussed hereinabove, the Counsel for defendant Nos.1a to 1c was present throughout the proceeding right from examination-inchief/cross-examination of the plaintiff upto the date of arguments advanced on behalf of the petitioner.

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Undisputedly, Rule 17-A of Order 18 of the Code which was inserted by Amendment Act,1976, stands deleted from 1^st July, 2002. It is a different matter, that even applying the requirements as provided under the said provision, even then the application as filed by respondent Nos.1 to 3 would

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not have been tenable. Even under the said provision, a party would have been permitted to lead evidence at a later stage, only after it satisfied the condition that in spite of exercise of due diligence, the evidence was not within its knowledge or could not have been produced at the time when the party had an opportunity to lead evidence. In that view of the matter, the only provision under which an application filed by respondent Nos.1 to 3 would have been tenable would be Order 18 Rule 17 which reads thus ;

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Order 18 Rule 17 - Court may recall and examine witness : The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.

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The Apex Court had an occasion to consider the scope of Order 18 Rule 17 of the Code of Civil Procedure in the case of Vadiraj Naggappa Vernekar (supra). Paragraph Nos.16 and 17 of the said judgment read thus:

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In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.

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It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for reexamination-in-chief with permission to the defendants to crossexamine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.

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It is, thus clear that the Apex Court in unequivocal terms has held, that the said provision is not required to be taken resort to in a casual manner and is also not intended to fill up lacuna in the case of a party. The Apex Court further observed that the said provision is required to be used sparingly and in appropriate cases and not as a general rule, merely on the ground that recall and re-examination would not cause any prejudice to the parties. The Apex Court has observed that some of the principles akin to Order 47 of the Code may be applied, when a party makes an application under the provisions of Order 18 Rule 17 of the Code. One of such principles would undoubtedly be as to whether a party in spite of exercise of due diligence could not have led the evidence when it had an occasion to do so.

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The only ground on which the present application has been allowed is, that a party should not be made to suffer on account of change of a Lawyer and that no prejudice would be caused to the petitioner. In so far as causing of prejudice is concerned, as already discussed above in the case of Vadiraj (supra), the Apex Court has held that the power is not to be exercised only on the ground that the same would not cause any prejudice to the parties.

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Apart from that, I find that the finding of the learned Trial Court that no prejudice is caused to the petitioner, itself is erroneous one. The suit of 1988 which has reached upto final stage, is in fact permitted to be reopened by the learned Trial Court and the effect of the impugned order is, that the trial would now start de-novo. In that view of the matter, it is difficult to understand as to how the learned Trial Judge has observed that no prejudice would be caused to the petitioner-plaintiff.

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In so far as the finding of the learned Trial Court that since the earlier Lawyer of the firm is no more working with the firm, was a good ground for allowing the application is concerned, the same is also without any substance. The said defendants were represented by a Law Firm. The learned Trial Judge has observed that apart from the Lawyer whose name was mentioned in the application, another Lawyer was also attending the proceeding. Apart from that, as already discussed hereinabove, the Lawyer representing the said defendants was present throughout the proceeding. Only after the arguments on behalf of the plaintiff have been closed and the matter has been kept for arguments of the defendants, such a plea is sought to be raised.

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The learned Single Judge of this Court in the case of Geenu Rakesh Khurana (supra) observed thus:

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“4. Perusal of the records discloses that the applicants have been attempting to delay the trials of cases filed against them. The grievance of the applicants that Advocate appearing initially on their behalf did not conduct the trials properly has no substance inasmuch the applicants allowed their earlier lawyer to conduct the matters for a considerable length of time and it is only at the fag end of trials, grievance is made that earlier lawyer did not conduct the cases propery. Therefore, I find no substance in the grievance made by the applicants. No doubt under Section 311 of the Code a witness can be recalled at any stage but for recalling a witness, a party who seeks to recall the witness must make out a case for recalling of such witness. A party is not entitled to seek recall of a witness at his/her sweet will. In the present case, I find that the applications which were filed before the learned Magistrate were filed with a view to delay the trials.”

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The said observations of the learned Single Judge would aptly apply to the facts of the present case also.

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In so far as the judgment of the learned Single Judge of this Court in the case of Steelage Industries Ltd. Bombay and Anr. (supra) is concerned, the facts in the said case are not at all identical with the facts of the present case. In the said case, the plaintiff had in fact entered into witness box. However, on account of unfortunate accident of the learned Counsel appearing in the matter for the examination-in-chief which was conducted by some other Lawyer, the material regarding bonafide requirement of the plaintiff could not be brought on record. In these circumstances, the learned Judge found that this was an exceptional case wherein on account of grievous accident of the Counsel appearing on bhalf of the plaintiff, the substantial material regarding bonafide need could not be brought on record by the Counsel appearing on behalf of the plaintiff. Even in that case, recalling was thus permitted only to the extent of the bonafide requirement of the landlady plaintiff and that too to the extent that is set out in the pleading. As a matter of fact, the learned Judge has observed that the power has to be exercised sparingly and in rare circumstances. In that view of the matter, the said judgment would not be applicable to the facts of the present case.

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In that view of the matter, I am of the considered view, that the learned Trial Court has grossly erred in allowing the application at such a belated stage, when the trial which is almost complete. The powers under Rule 17 Order 18 of the Code cannot be permitted to be used at the behest of a negligent litigant and that too at the fag end of the trial, which results into permitting a de-novo trial, when the suit has almost come to an end.

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Rule is accordingly made absolute in terms of prayer clause (a). No order as to costs.

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Taking into consideration the fact that the suit is pending since 1988 and is only at the stage of hearing/judgment, the learned Trial Court is directed to conclude the trial within a period two months from today

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(B.R.GAVAI, J.)

Aparna Bhagwan Thadani v. Jayashri Ashok Agarwal and Ors.

Case brief

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Aparna Bhagwan Thadani v. Jayashri Ashok Agarwal and Ors.

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