Single judge allowed recall of plaintiff's witness PW1 and withdrawal of defendant's affidavit to lead additional evidence, imposing costs on plaintiffs for delay in document disclosure.
Recall of PW1 for further evidence allowed; Defendant's affidavit withdrawn; Plaintiff to pay Rs. 7,500 costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
936-NMS846-16.DOC
SHEPHALI
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 846 OF 2016
IN
SUIT NO. 2176 OF 2004
Hawa Valves (India) Pvt. Ltd.…Plaintiffs
Versus
Hawa Engineers Ltd. …Defendant
Mr. Ajit Anekar, a/w Mr. Thomas James, i/b Auris Leyal, for the
Plaintiffs.
Mr. Dharam Jumani, Mr. Mahesh Mahale, and Mr. Manal Dhanani,
i/b M/s. Ganesh & Co., for the Defendant.
CORAM: G.S. PATEL, J DATED: 19th October 2016
PC:-
1.The application from Mr. Anekar for the Plaintiffs is, as I
have previously noted, to recall PW1 for further evidence and to
allow him to lead further documents in evidence. This comes at the
stage after the Plaintiffs’ close their case, the Defendant has filed his
Affidavit in lieu of examination-in-chief, but before the cross-
examination of the Defendant is commenced. In fairness, Mr.
Anekar states that the application is necessitated only due to
inadvertence on the part of both his client and the legal team. As
regards the first four documents marked as Exhibits “A1” to “A4”
Page 1 of 3
19th October 2016
936-NMS846-16.DOC
to the Affidavit in Support of this Notice of Motion. The other
documents are subsequent but are important to a determination of
the real issues in the Suit.
2.Having regard only to the fact that the cross-examination of
the Defendant is to begin, I am inclined to allow the application but
on some terms. For, I must protect the Defendant’s interest as well
to ensure that the balance is maintained in the Suit. It is pointed out
on behalf of the Defendant that at least the first four emails ought to
have been disclosed earlier and there is no valid reason given for
their non-disclosure and for not introducing them in evidence in a
timely fashion. I will take this as a pointed criticism of both Mr.
Anekar and his attorney but I will leave at that. At best, this will
result in an order of costs, but certainly not in a shutting out of the
evidence.
3.The Defendant must, I think, be permitted to withdraw his
evidence Affidavit. The Plaintiffs will not be permitted to confront
the Defendant with that Evidence Affidavit dated 6th August 015 at
any point and for any purpose. After the Plaintiffs have led their
additional Evidence and their witness PW1 has been cross-
examined, the Defendant will at liberty to decide whether or not it
wishes to lead any evidence or not. The fact that it chooses not to
lead any evidence is not to be misconstrued, nor will an adverse
inference be drawn against the Defendant if the Defendant does not
present a witness for cross-examination. It is for this reason that I
am permitting a withdrawal of the 6th August 2015 Affidavit in its
entirety. The Defendant is at liberty to decide whether or not it
wishes to file an Affidavit thereafter.
Page 2 of 3
19th October 2016
936-NMS846-16.DOC
4.The Plaintiff will file the additional Affidavit in lieu of
examination-in-chief of PW1 and a separate compilation of
documents on or before 18th November 2016. I am making it clear
that there will be no further Evidence Affidavit on behalf of the
Plaintiff and that any remaining evidence will be led through this
witness, PW1, after which the Plaintiff will close its case. This too is
necessary because otherwise it means that the entire trial effectively
has to start afresh.
5.As regards the question of costs, I believe that an order of Rs.
7,500/- as costs payable by the Plaintiff to the Defendant is
sufficient at this stage. These costs are to be paid on or before 18th
November 2016.
6.List the matter for marking the Plaintiff’s documents on 30th
November 2016.
7.It is clarified that in PW1’s further Evidence Affidavit, the
Plaintiff will be at liberty to include all the material included in the
Affidavit in Support of the Notice of Motion as also any other
material that the Plaintiff wishes to include, keeping in mind that
there will be no further Evidence Affidavit after this.
(G. S. PATEL, J.)
Page 3 of 3
19th October 2016
3 issues framed by the court
Whether to allow recall of witness PW1 for further evidence at the close of plaintiff's case.
Whether to allow withdrawal of defendant's evidence affidavit to prevent confrontation with deleted evidence.
Whether to impose costs due to late introduction of documents.
Hawa Valves (India) Pvt. Ltd.
Hawa Engineers Ltd.
G.S. PATEL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court