Grants leave for Plaintiffs to lead evidence of two additional witnesses in a testamentary suit while restricting further affidavits and directing trial in open court.
Plaintiffs directed to file Affidavits of Evidence for Percy D'Souza and Sandip Pawaskar by 17 August 2015; trial to be conducted in court.
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909-NMT89-15.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 89 OF 2015
IN
TESTAMENTARY SUIT NO. 70 OF 2012
IN
TESTAMENTARY PETITION NO. 737 OF 2012
Olga Rodrigues & 2 Ors.…Plaintiffs
Versus
Christopher Pinto & 15 Ors.…Defendants
Mr. Zubin Behramkamdin, i/b Mr. M.G. Gawde, for the Plaintiff.
Ms. Sonal, with Mr. Shushrut Desai, i/b M/s. Thakore Jariwala
Associates, for Defendants Nos. 1 to 6, 14 & 15.
Ms. Rajani Iyer, Senior Advocate, with Ms. Geeta Sonawane, i/b
Mr. Denzil D’Mello, for Defendant No. 13A.
CORAM: G.S. PATEL, J DATED: 11th August 2015
PC:-
1.This is an application by the Plaintiffs for leave to lead
evidence of two further witnesses. The first of these is the 3rd
Plaintiff Mr. Percy D’Souza. The second is one Sandip Pawaskar,
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an Accountant in the offices of M/s. Wadia Ghandy & Co.,
Solicitors.
2.The application is unusual. Ordinarily, it was unnecessary. It
was filed in quite extraordinary circumstances and because I
indicated that the Plaintiffs should do so, in order that the
Defendants could have an opportunity of contesting the
application. This was in the context of what transpired in the Court
during the cross-examination of the Plaintiffs’ first witness, Mr.
Noshir Sethna, an attesting witness to the Will being propounded, a
Solicitor of this Court and a partner of M/s. Wadia Ghandy & Co.
The Defendants’ case is that the cross-examination of Mr. Sethna is
such that the present application can only be in order to lead further
evidence to undo the effect of that cross-examination. Ms. Sonal,
learned Advocate for the Defendants other than Defendant No.
13A, and Ms. Iyer, learned Advocate for Defendant No. 13A, point
out that this is a matter in which the Plaintiffs have in fact filed
Affidavits in lieu of examination-in-chief under Order 18 Rule 4 of
the Code of Civil Procedure, 1908 (“CPC”) not only of Mr. Sethna
but also of five other witnesses. Mr. Percy D’Souza and Mr. Sandip
Pawaskar are not among these five. One of the five witnesses cited
is Mr. Percy D’Souza’s own spouse Ms. Joanna D’Souza. It cannot
be accident, Ms. Sonal and Ms. Iyer say, or mere coincidence that
the application came to be made only after the cross-examination of
Mr. Sethna, at a most critical juncture of the trial.
3.Ms. Sonal submits that the provisions of Order 16(1)(3) of
the CPC require that when a list of witnesses has been submitted, a
party can call a person not on the list only if sufficient cause is
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shown for that omission. In the present case, she submits, other
than claiming inadvertence no cause whatsoever is shown. Order
16(1)(3) is, in her submission, mandatory. Merely claiming
inadvertence is insufficient cause. For her part, Ms. Iyer draws
attention to Order 18 Rule 3A of the CPC. While she acknowledges
that in view of the decision in Walter D’Souza v Anita D’Souza,1 in
a contested testamentary proceeding such as this, an attesting
witness’s evidence must be led first. There is no reason at all why
these two names did not feature in the list of five names given
earlier. The Plaintiffs had legal advice. On that legal advice, they
entered the Affidavits of Evidence of Mr. Sethna and the other five
witnesses but not the Affidavits of Evidence of Mr. Percy D’Souza
or Mr. Sandip Pawaskar. These two names are now being
introduced only in order to somehow subvert the process of this
Court, the trial that is ongoing and to undo the effects of the cross-
examination of Mr. Sethna. Ms. Iyer also says out that this is a
matter where the stakes are substantial and the properties are being
dealt with while the trial is being prolonged.
4.As regards the properties, Mr. Behramkamdin, learned
Advocate for the Plaintiffs, points out that a statement has already
been made that there are no dealings with the properties. His
instructions are to reiterate that statement today. His submission is
that the provisions of Order 16 Rule 1 of the CPC only apply in a
case where the Court’s assistance is necessary in gathering and
marshalling evidence and not otherwise.2
12015(2)ABR90
2Mange Ram v Brij Mohan & Ors., (1983) 4 SCC 36
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5.It is his submission that it is now well settled that no Court
should should shut out the evidence unless the introduction of that
evidence is a patently an abuse of the process of the Court. Merely
because one particular cross-examination has been, in view of the
Defendants, successful, that does not by itself mean that the
introduction of further evidence is an abuse of the process of the
Court. He points out that a denial of the relief to the Plaintiffs is
more than just disallowing this or that witness to lead evidence. It
amounts to shutting out evidence altogether and effectively closing
a party’s case at least in part or on some aspects that fall for
consideration.
6.Things might have been very different had the Plaintiffs,
following the cross-examination of Mr. Sethna, sought an
amendment to the Petition to undo the effect of the cross-
examination of Mr. Sethna. That might conceivably be held to be an
abuse of the process of the Court.
7.But that is not the same as objecting to an application to
allow the Plaintiffs to lead evidence on the petition as it stands. In
the present case, there is no doubt that Mr. Pawaskar is attesting
witness. The other witness whose evidence is now sought to be
introduced is Mr. Percy D’Souza, Plaintiff No. 3. I do not see how
the evidence of either of these witnesses can possibly be kept out at
this stage. There is no manner of doubt in my mind that the
Defendants will have the fullest latitude in the cross-examination of
not only of these witnesses but of all other witnesses as well. They
will also be entitled at the time of arguments to make their
submissions on the evidentiary value of the testimonies of the
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witnesses called by the Plaintiffs. All of this is, however, well into
the future. This is not the time or the stage to decide this question.
To do so now would be to prejudice the entire suit even before all
the evidence has been taken. Mr. Behramkamdin is, in my view,
correct in his submission that the rule requiring a party to adduce
his best evidence is one by which he is trying to abide, inter alia by
leading the evidence of the second attesting witness and one of the
Plaintiffs.
8.I am, however, mindful of the timing of this application as
Ms. Sonal says. While it is true that I cannot shut out the Plaintiffs’
evidence, I am also not prepared to allow them a completely free
run in terms of adding to the Affidavits of Evidence that have
already been filed by the five witnesses whose names have been
provided in a list. It will not be open now, i.e., beyond this point
onward, for the Plaintiffs to add any supplementary Affidavits of
Evidence in lieu of examination-in-chief for the five witnesses who
were so cited before the cross-examination of Mr. Sethna
commenced. No further examination-in-chief will be permitted
except with the leave of the Court conducting the trial.
9.Finally, as an essential safeguard, I would venture to suggest
that appropriate directions be obtained that the trial of this matter
be conducted in Court and not be referred to a Commissioner for
recording evidence. The reason for that is simple. Before a
Commissioner, there will be no question of deciding any objection
and all manner of material will enter the record. This will only
prolong and delay the final disposal of the Suit.
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10.The Plaintiffs shall file and serve Affidavits of Evidence of
both Mr. Percy D’Souza and Mr. Sandip Pawaskar on or before 17th
August 2015. In respect of these two witnesses also, there will be
only one Affidavit in lieu of examination-in-chief and no further
examination-in-chief will be permitted at the trial except with the
leave of the Court.
11.The Notice of Motion is disposed of in these terms. There
will be no order as to costs.
12. List the Suit for directions on 19th August 2015.
(G. S. PATEL, J.)
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2 issues framed by the court
Whether leave should be granted to adduce evidence of two further witnesses despite their omission from the original list.
Whether the timing of the application constitutes an abuse of the process of the court warranting a refusal of evidence.
Colour shows how this judgement treated each authority
Walter D'Souza v Anita D'SouzaExplained¶21
Walter D'Souza v Anita D'Souza, 2015(2)ABR 90
Mange Ram v Brij Mohan & OrsExplained¶24
Mange Ram v Brij Mohan & Ors, (1983) 4 SCC 36 · Who else cites this
3 provisions across 1 enactments
Olga Rodrigues & 2 Ors.
Christopher Pinto & 15 Ors.
G.S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court