Allowed

Smt. Escolastica F. C. Menezes and Anr., v. Shri Remygio D'Mello and 9 Ors.

Bombay HC7 Feb 2014WP/64/2013

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Bombay at Goa held that the Civil Judge erred in refusing to recall a plaintiff's witness who had not been cross-examined due to counsel withdrawal. Relying on Section 151 CPC, the Court quashed the impugned order and directed recall of the witness.

What did the court decide?

Impugned order quashed; application for recall of PW1 allowed; petitioners permitted to cross-examine PW1.

Smt. Escolastica F. C. Menezes and Anr., Vs… — Civil Procedure and Limitation | Bombay HC (2014)

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WP64/13

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… 1 …

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 64 of 2013

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Smt. Escolastica Felicidade Carolina Menezes, Major of age,

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Shri Pedro Antonio Dos Milagres Jose Diniz, Major of age, Both r/o H. No. 1590 Gottunguem, Curtorim, Salcete - Goa. … Petitioners.

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Versus

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Shri Remygio D'Mello, major of age, R/o Shop No. 6, D'Mello Apartments, Margao, Salcete - Goa.

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Mrs Linda D'Mello, major of age, and

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Mr. Anselmo D'Mello, major of age, and

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Mrs Rovina Fernandes D'Mello, major of age, All R/o Flat No. 2, D'Mello Apartments, Pajifond, Margao, Salecete-Goa.

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Mrs Melicia D'Mello, major of age,

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Mr. Francisco Fernandes, major of age, Both R/o 3, Star Bar, Verem, Reis Magos, Bardez, Goa.

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Mrs Flavia D'Mello, major of age,

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Mr Januario Rodrigues, major of age, Both r/o Aurora Gomes building, Opp Hotel Fidalgo, Panaji, Goa.

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WP64/13

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… 2 …

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Mrs Carlota D' Mello e Dias, major of age, widow, residing at c/o Norris de Cruz Opp. Maharaja Hotels Vasco da Gama, Goa.

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The D'Mello Co-operative Housing Society Ltd. Through its Secretary, major of age, D'Mello Apartments, Pajifond, Margao, Salcete, Goa. … Respondents.

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Mr. Nigel Da Costa Frias, Advocate for the petitioners.

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CORAM :- U. V. BAKRE, J.

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Date : 7 th February, 2014

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ORAL JUDGMENT :

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Heard Mr. Costa Frias, learned Counsel appearing on behalf of the petitioners.

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2. By order dated 08/02/2013, this Court had directed issuance of notice to the respondents making it clear that the petition shall be disposed of finally at the stage of admission. In spite of that though all the respondents, more particularly respondent no.1, are served, the respondents are absent.

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3. By this petition, the petitioners have taken exception to the order dated 20/12/2012 passed by the learned Civil Judge, Senior Division, Margao whereby the application filed by the

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present petitioners in Regular Civil suit No. 260/2010/A for recalling PW1 has been rejected.

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4. Respondent no.1 has filed the said suit against the petitioners and respondents no. 2 to 10 for declaration, injunction and mesne profits. The petitioners as defendants no. 5 and 6 in that suit have filed their written statement and respondents no. 2 to 10 have also filed written statement, taking appropriate defence against the case of respondent no.1.

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5 . After framing of the issues, the trial commenced and respondent no.1 examined himself as PW1. PW1 has been crossexamined by the learned Counsel for the respondents no. 2 to 10, but not by the learned Counsel, appearing in that suit, for the petitioners. It appears that the respondent no. 1(PW1) has closed his case and even the respondent no. 2 has examined herself.

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6. It is the case of the petitioners that the case was regularly followed by petitioner no.1 and that she had a fall on 30/07/2011, as a result of which, she sustained injuries to her left leg and knee and was advised rest for a period of three months from 30/07/2011 and thus was confined to bed for more than three months on account of the said injuries. It is the case of the

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WP64/13 … 4 …

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petitioners that they had contacted the learned Advocate representing them in the suit and it was learnt that for want of instructions from the petitioners, he did not cross-examine PW1 and further withdrew his appearance on behalf of the petitioners. Ultimately, the cross-examination of PW1 by the petitioners was closed. It is stated by the petitioners that in the month of March, 2012, when the daughter of the petitioners visited the office of the learned Advocate, it was learnt that he had withdrawn from appearance. It is thereafter that the petitioners engaged another Counsel who checked the records and found that the crossexamination of PW1 was closed. The petitioners have stated that the notice of withdrawal from appearance sent by their Advocate was received by them after the deposition of PW1 was completed.

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7. On 16/04/2012, the petitioners filed an application for recall of PW1 before the Trial Court. In this application, all the said facts as to how the petitioners and their Advocate could not attend the Court for cross-examination of PW1 have been specifically mentioned.

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8. The learned Trial Court has rejected the application on the ground that it has no jurisdiction to review or to recall the order of closing the evidence. It is observed that if the defendants

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… 5 …

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no. 5 and 6 are permitted to recall the plaintiff 's witnesses, prejudice will be caused to the plaintiff because the plaintiff has already closed his case and has also cross-examined defendant no. 1.

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9. A perusal of the impugned order reveals that the reasons mentioned by the petitioners in the application as to why they could not attend the Court for cross-examination of PW1, have not at all been considered. The observation of the Trial Court that it has no jurisdiction to review or recall the order of closing the cross-examination of PW1, does not appear to be correct. Section 151 of the Code of Civil Procedure lays down that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice.

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10. The learned Counsel appearing on behalf of the petitioners has relied upon “ Chairman, Notified Area Council Bhanjanagar and another Vs. Kudini Lingaraju Patra ” [AIR 1974 Orissa 17] wherein the Orissa High Court has held that the Court, after being satisfied that the Advocate for the plaintiff could not be present in the Court at the time when the defence witnesses were being examined in chief, for reasons beyond his

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control, can entertain the application of the plaintiff under Section 151 for recalling the witnesses for the purpose of crossexamination, there being no other provision in the Code to meet the situation. I am in respectful agreement with the observations made by the Orissa High Court in the case (supra).

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11. In all the circumstances above, the impugned order, which causes grave prejudice to the petitioners, since they have not been in a position to put up their case to the main witness of the plaintiffs namely PW1, is unsustainable and requires to be quashed and set aside.

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12. In view of the above, the petition is allowed.

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(a) The impugned order is quashed and set aside.

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(b) The application dated 16/04/2012 filed by the petitioners for recalling PW1 is allowed.

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13. The petition stands disposed of accordingly.

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U. V. BAKRE, J. SMA

Smt. Escolastica F. C. Menezes and Anr., v. Shri Remygio D'Mello and 9 Ors.

Case brief

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What did the court decide?

Smt. Escolastica F. C. Menezes and Anr., v. Shri Remygio D'Mello and 9 Ors.

Case brief

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What did the court decide?

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