Dismissed

Arvind Gajanan Shenvi Ghatkar and Anr. v. the Mazania of the Temple of Shri Mahalaxmi and Its Affilates of Panaji, Rep. by Its Attorney

Bombay HC28 Jul 2021WP/256/2021

Case brief

AI extract

What is this about?

In a writ petition challenging an order denying recall of a witness for cross-examination, the Goa High Court declined to intervene under Article 227, stating that the matter did not warrant extraordinary jurisdiction at this stage and the petitioner could challenge the order later if aggrieved.

What did the court decide?

The petition was not entertained and is dismissed; no order as to costs.

Arvind Gajanan Shenvi Ghatkar and Anr. Vs the… — Civil Procedure and Limitation | Bombay HC (2021)

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904 WP 256 of 2021.doc

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Jose

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IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.256 OF 2021

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ARVIND GAJANAN SHENVI GHATKAR AND ANR.

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... Petitioners.

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Versus

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THE MAZANIA OF THE TEMPLE OF SHRI MAHALAXMI AND ITS AFFILATES OF PANAJI, REP. BY ITS ATTORNEY

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... Respondents.

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Mr. Ajit R. Kantak, Advocate for the Petitioners .

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Mr. S. D. Lotlikar, Senior Advocate with Mr. S. Polle, Advocate for the Respondents .

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Coram: M.S. SONAK, J.

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Date: 28^th July 2021.

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P.C.:

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1. Heard learned Counsel for the parties.

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2.The challenge in this petition is to the order dated 06.07.2021 by
which the learned Trial Judge has dismissed Petitioners' application
seeking recall of PW3 for cross-examination.

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3.Mr. Kantak submits that such recall was necessary because PW4,
after the conclusion of his cross-examination was granted leave to
produce additional documents. Further, even PW1 was recalled for
producing additional documents. Mr. Kantak submits that in such
circumstances, the Petitioners were entitled to seek recall of PW3, the
surveyor who has deposed allegedly based on certain documents of the

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Page 1 of 3 28th July 2021

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904 WP 256 of 2021.doc

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parties. Mr. Kantak submits that cross-examination of PW3 is necessary
in the context of the additional documents.

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4.Mr. Lotlikar, the learned Senior Advocate for the Respondents,
opposes the grant of any reliefs in this petition by pointing out that it is
impermissible to recall any witness only for cross-examination. He
submits that such power is vested in the Court if the Court finds it
necessary and appropriate for appreciating the evidence on record in its
entirety. Mr. Lotlikar submits that this position has been made clear in
Balkrishna Shivappa Shetty vs. Mahesh Nenshi Bhakta and ors.1, and
Gayathri vs. M. Girish2.

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5.Mr. Lotlikar, therefore, submits that this petition ought to be
dismissed with costs.

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6.Mr. Kantak, learned Counsel for the Petitioners rejoins to point
out that the Petitioners' application was in the context of the provisions
of Order XVIII Rule 17-A of the Civil Procedure Code. He submits that
though this provision has been deleted from the CPC, the Hon'ble
Supreme Court in the case of K.K. Velusamy vs. N. Palanisamy3, has
held that such powers in a fit case, can be exercised by the Trial Court
under section 151 of the Civil Procedure Code.

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7. Having considered the rival contentions and perused the material on record, I find that this application for recall was made by the Petitioners after the Plaintiffs closed their evidence, and further, one of

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1 2003(3) Mh.L.J.

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2 (2016) 14 SCC 142

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3 (2011) 11 SCC 275

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Page 2 of 3 28th July 2021

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904 WP 256 of 2021.doc

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the Petitioners examined himself as DW1. Be that as it may, this is not
some case where interference is warranted under extraordinary
jurisdiction under Article 227 of the Constitution at this stage itself. If
ultimately, the matter is decided against the Petitioners, and the
Petitioners, decide to question the Judgment and Decree, the Petitioners,
will have an opportunity to question even the order impugned in this
petition at that stage. This is not some case where a stitch in time will
save nine.

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8.Even Mr. Kantak, to the pointed query of the Court, submits that
it is not as if the impugned order denying the Petitioners' opportunity of
cross-examining PW3 is going to make some significant dent in the case
of the Petitioners.

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9.For all the aforesaid reasons, this petition is not entertained.
However, it is made clear that this Court has not decided on the merits of
the matter and therefore, if the Petitioners are still aggrieved by the
Judgment and Decree that may be made in the suit, the Petitioners, will
have the liberty to challenge even the order impugned in this petition at
that stage if they choose to.

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10.The petition is accordingly dismissed. There shall be no order as to
costs.

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11.All concerned to act based on an authenticated copy of this order.

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M.S. SONAK, J.

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Page 3 of 3

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28th July 2021

Arvind Gajanan Shenvi Ghatkar and Anr. v. the Mazania of the Temple of Shri Mahalaxmi and Its Affilates of Panaji, Rep. by Its Attorney

Case brief

What is this about?

What did the court decide?

Arvind Gajanan Shenvi Ghatkar and Anr. v. the Mazania of the Temple of Shri Mahalaxmi and Its Affilates of Panaji, Rep. by Its Attorney

Case brief

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What did the court decide?

What the court decided

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