Allowed

Anita Sitaram Sawant and Others v. Gosar Develoopers and Others

Bombay HC17 Feb 2017WP/3713/2014

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging two orders of the Civil Judge. The High Court quashed the orders which permitted a substitute witness not listed in the witness list to tender evidence and subsequently allowed the plaintiff to challenge this. It held courts cannot cancel properly tendered evidence and cautioned strict adherence to Order XVI Rule 1(3) CPC for new witnesses to main

What did the court decide?

The writ petition was allowed. Both impugned orders of the Civil Judge were quashed and set aside. The affidavit of the substitute witness (Vasant) was directed not to be read in evidence. Plaintiffs

Anita Sitaram Sawant and Others Vs Gosar… — Civil Procedure and Limitation | Bombay HC (2017)

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wp3713.14

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 3713 OF 2014

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`1.`	`Anita Sitaram Sawant` `..` `Age. 45 years, Occ. Advocate`	`Petitioners`
`2.`	`Shobha Madhu Sawant` `Age. 65 years, Occ. Household`
`3.`	`Manish Madhu Sawant`
	`Age. 32 years, Occ. Nil`
`4.`	`Pravin Madhu Sawant`
	`Age. 31 years, Occ. Nil`
	`All R/o. Gulabchand Bhagwanji Chawl,` `Malegaon Road, Dhule.`
	`Versus`
`1.`	`Gosar Developers` `..` `A Partnership through`	`Respondents`
`1A.`	`Sau. Nita Vasant Gosar`
	`Age. 50 years, Occ. Business` `R/o. Shri Ganesh Apartment,`
	`Agrawal Nagar, Dhule.`
`1B.`	`Heena Ketan Gosar`
	`Age. 45 years, Occ. Business,`
	`R/o. 10, Agrawal Nagar, Dhule.`
`2.`	`Shri Raju Sitaram Sawant`
	`Age. Years, Occ.:`
`3.`	`Sanjana Sitaram Sawant` `Age. Years, Occ.:`

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Both R/o. Gulabchand Bhagwanji Chawl,
Malegaon Road, Dhule.

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Mr.M.S. Kulkarni h/f. Mr. A.S. Shivpuje, Advocate for the
petitioners.

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Mr.S.P. Brahme, Advocate for respondent Nos.1A & 1B.

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CORAM : S.B. SHUKRE,J.
DATED :17.02.2017

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ORAL JUDGMENT :-

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1.Heard. Rule. Rule made returnable forthwith and
heard finally by consent.

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2.By this writ petition the legality and

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correctness of two orders passed by the Civil Judge are
under challenge. The first order is of 03.10.2011 by

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which application vide Exh.54 has been allowed and the
second order is of 16.01.2013, by which the petitioners'
application vide Exh.66 has been rejected.

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3.The application vide Exh.54 was filed by the

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contesting respondent Nos.1A and 1B, the original
plaintiffs and application vide Exh.66 was filed by the
petitioners, the original defendant Nos. 1,2,3 and 6

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respectively. The respondent Nos.2 and 3 are the original
defendant Nos.3 and 4. The suit has been filed for
delivery of possession and mesne profits.

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4.It so happened that the contesting respondent

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No.1A, who is a partner of plaintiff firm filed her
affidavit in lieu of examination-in-chief on 15.03.2010

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and it was accordingly taken on record. Thereafter on
25.08.2011, an application (Exh.54) was moved on behalf
of the plaintiff firm that respondent No.1A, due to blood
pressure, did not keep well and as in any case all the
affairs of the firm were looked after by her husband,

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Vasant, it would neither be possible nor required for the
respondent No.1A to appear before the Court for
verification of the affidavit as well as submitting
herself to cross-examination and that purpose would be
served by allowing her husband Vasant to tender affidavit

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and face the cross-examination. Accordingly, permission

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in this regard was sought. No say was filed by the

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petitioners – original defendants. Therefore, by order

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passed on 03.10.2011, the learned Civil Judge granted the
application.

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5.Following the grant of application vide Exh.54,
Vasant-husband of respondent No.1A filed affidavit in

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lieu of examination-in-chief on 17.03.2011. Now it was
the turn of the petitioners to come out in open to oppose

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the affidavit so filed by Vasant. The petitioners filed
an application vide Exh.66 contending that the plaintiffs
did not submit list of witnesses as required under Order
XVI Rule 1 of the Civil Procedure Code nor did seek leave
of the Court under Order XVI Rule 1(3) of the Civil
Procedure Code to examine a person not named in the list
of witnesses as their witness and thus they prayed that
the affidavit in lieu of examination in chief filed by
Vasant be struck off the record.

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6.After hearing both the sides, learned Civil
Judge, by order passed on 16.01.2013, rejected this
application at Exh.66 reasoning that leave was already

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granted as per order passed below application at Exh.54
and in any case the plaintiffs being master of their
suit, have their own choice to examine any person as a
witness on their behalf. Learned Civil Judge also found
that the non-complaince with the provisions of Order XVI
Rule 1(3) of the Civil Procedure Code would not deter a
plaintiff from examining any person, not named in the
list of witnesses as a witness.

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7.Let us now consider the first order dated

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03.10.2011 passed below application Exh.54. This order
has duel effect. Firstly, it cancels the affidavit in
lieu of examination-in-chief of respondent No.1A, which
is a part of her evidence and secondly it allows a person

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to enter the witness box as a witness of plaintiffs even

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though admittedly his name is not to be found in the list
of witnesses of the plaintiff. In-fact, there is no
dispute about the fact that no list of witnesses was
filed by the plaintiffs as required under Order XVI Rule

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1 of the Civil Procedure Code. If no list of witnesses

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was filed, the question of Vasant's name appearing in any

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such list would not arise. So, the fact is that the
person who was to be brought as a witness in place of
respondent No.1A with leave of the Court was not named in
any list of the witnesses.

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8.Now the question is – can a Civil Court cancel
evidence of any witness? The answer to the question has
to be in the negative, as there is no provision of law
which permits any Court to cancel the evidence of a
witness. In section 3 of the Indian Evidence Act, term
“Evidence” has been defined to mean and include oral and
documentary evidence. Oral evidence includes all

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statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact
under inquiry and documentary evidence includes all
documents including electronic records produced for the
inspection of the Court. Here we are concerned with that
part of the definition which relates to what is called

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'Oral Evidence'. The oral evidence comprises the

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statements which are permitted by the Court to be made
before it. Such statements are to be made upon oath, as
required under section 4 (1)(a) of the Oaths Act, 1969.
Once, permission to make such statements upon oath is
given by the Court, such permission cannot be withdrawn
by the Court unless there is a specific provision made
under the Indian Evidence Act or any other relevant
statute. There is no such provision made in the Indian
Evidence Act, nor the learned Counsel for the contesting
respondents could show to me the existence of any such
provision. If such withdrawal power is to be read in the
power to permit a witness to make the statement, it would
amount to withdrawal of oath taken by that witness, which
would hit at the very sanctity attached by law to the

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oath taken by a witness, as under section 8 of the Oaths
Act, 1969, a witness giving evidence is under a duty to
state the truth. In matters of evidence, there is a
presumption, as consistently held by Hon'ble Apex Court
(see Aher Raja Khima Vs State of Saurashtra, AIR 1956 SC
217and Girja Prasad (Dead) by LR.s Vs State of M.P.

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(2007) 7 SCC 625), that every person is presumed to have

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acted honestly. This presumption when seen in the context

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of duty to speak the truth imposed on a witness under
Section 8 of the Oaths Act, would give rise to further
presumption, presumption of correctness attached to
statements made or tendered on oath. This presumption is

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rebuttable but that comes later and would be a matter of
appreciation of statement called evidence. Such
statements, therefore, will have to be considered
appropriately while appreciating evidence and necessary
conclusions will have to be drawn. It would then follow
that such oral evidence once tendered cannot be permitted

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to be withdrawn or canceled, rather would have to be made
available for being scanned and appropriately inferred

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about. This may not be so, however, in a case where
evidence is given though it is impermissible for a

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witness to tender it and in such a case the evidence so

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given would have to be ignored. But for the evidence
properly given as in the present case, the principles of

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law discussed earlier would be applicable.

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9.To such proper evidence, one more principle of

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law would be applicable. This principle, an equitable
principle having its source in doctrine of election and
rule of estoppel, does not permit a person to both
approbate and reprobate. Law does not permit a person to
do both, to accept and reject or to blow hot and cold, in

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the same breath. A useful reference may be had to
prescriptions of law laid down in this regard by Hon'ble
Apex Court in R.N. Gosain Vs Yashpal Dhir, AIR 1993 SC
352, Maharashtra State Road Transport Corporation Vs
Balwant Regular Motor Service, Amrawati and others, AIR
1969 SC 329, P.R. Deshpande Vs Maruti Balram Haibatti,

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AIR 1998 SC 2979 and Rajasthan State Industrial
Development and Investment Corporation and another Vs
Diamond and Gem Development Corporation Limited and

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another AIR 2013 SC 1241. Permitting withdrawal or
cancellation of properly tendered evidence would amount
to giving nod to a witness to approbate and reprobate,

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something prohibited by law. At the most, as said

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earlier, suitable inferences about acceptance or

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otherwise of such evidence can be made.

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10.In view of above discussion, the evidence
properly tendered before the Court by respondent No.1A
could not have been canceled by the Civil Court. Since
the learned Civil Judge has done it in the absence of any
power under the law to do so, the learned Civil Judge has
exceeded his jurisdiction and thus committed a patent
illegality in passing the impugned order dated
03.10.2011, insofar as it has the effect of cancelling
the affidavit filed by respondent No.1A in lieu of her
examination-in-chief.

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11.As regards the second effect of order dated
03.10.2011, I must say that even leave to examine a
person as a witness not named in any list submitted by
the plaintiffs, could not have been given. There is an
express provision of law made in order XVI Rule (1) (3)

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of the Civil Procedure Code. It reads thus :-

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“The court may, for reasons to be recorded,
permit a party to call, whether by summoning
through court or otherwise, any witness, other
than those whose names appear in the list
referred to in sub-rule (1), if such party shows
sufficient cause for the omission to mention the
name of such witness in the said list.”

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12.The learned Single Judge of this Court in the

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case of M.M. Corporation Vs. Juhu Vile Parle Development,

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2010(4) Mh.L.J.931, has taken a view that where a person

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who is not named as a witness in the list of witnesses is

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to be examined by a party, he can do so only with the
leave of the Court which can be granted by the Court for
sufficient cause. The view so taken by the learned Single

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Judge commends to me and so I find that any other
interpretation of this provision of law would only render
it redundant. One can see that behind such procedural
requirement prescribed under the statute, there is a
clear purpose. It is to put the opposite side on
sufficient notice of what rival party is likely to do.

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What kind of witnesses a party is likely to examine in
support of its claim, must be known in advance to other

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party, so that it would get sufficient time to put on its

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armour to defend itself well against the impending
onslaught. If this provision is ignored, as the learned
Civil Judge in this case has done, the purpose of this
procedural requirement would be defeated which may result

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in causing of prejudice to the defence of the party
seeking to contest the claim of the plaintiff. This
provision of law, it appears, has not been followed in
this case.

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13.Learned Counsel for the contesting respondents

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submits that the said application was not happily worded

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and therefore it should be construed with some leeway
permissible in cases involving interpretations of
pleadings. I would say, accepting such a contention,
rather would be like giving an adventurous interpretation
to the contents of application filed at Exh.54, by trying

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to find out something conspicuously missing in the
application. What was mentioned in the application was

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that respondent No.1A was not keeping well and so it was

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not possible for her to come to the Court for facing
cross-examination and that the other witness was well
acquainted with the affairs of the firm and therefore it
was prayed that affidavit of respondent No.1A be
cancelled and this person, her husband - Vasant be
allowed to be examined as a witness for the plaintiffs.
Nowhere it was stated therein that he was also a person

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whose name did not figure in any list of witnesses filed
by the plaintiffs. There was thus complete violation of
the procedural requirement. This non-compliance was
prejudicial to the interest of the petitioners, they
having been deprived of opportunity to properly brace
themselves up for their defence. Such witness could not
have been permitted to tender the affidavit in lieu of
examination in chief. But he was allowed to do and now
his affidavit in lieu of examination-in-chief has also
been taken on record. In this circumstance, what can be
done at the most, is to direct ignorance of the affidavit
and refusal to read it in evidence.

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14.In the result, this writ petition will have to

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be allowed by not only quashing the first order passed on
03.10.2011 passed below application at Exh.54 but also
subsequent order dated 16.01.2013, passed below
application at Exh.66 which was in consequence of what
was permitted to be done by the first order on
application at Exh.54.

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15.Accordingly, the writ petition is allowed. Both

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the impugned orders are quashed and set aside. However,
as regards subsequent order dated 16.01.2013, it is
directed that the affidavit of Vasant taken on record

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shall not be read in evidence and the plaintiffs are
hereby given liberty to file an appropriate application
to seek leave of the Court to tender evidence of a person

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not named in the list of witnesses, if any, in terms of
provisions of Order XVI Rule 1 of the Civil Procedure

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Code and if such an application is filed, same shall be
considered in accordance with the law. The suit shall be

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decided expeditiously, preferably within one year from

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( 15 ) wp3713.14

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the date of this judgment.

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16.Rule made absolute in above terms. No costs.

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[S.B. SHUKRE,J.]

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snk/2017/FEB17/ wp3713.14

Anita Sitaram Sawant and Others v. Gosar Develoopers and Others

Case brief

What is this about?

What did the court decide?

Anita Sitaram Sawant and Others v. Gosar Develoopers and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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