DANIEL VINCENT PHILIPS SON OF VINCENT PHILIPS Vs. CONSTANCIO PIEDADE D CRUZ SON OF LATE PIEDADE DCRUZ

JUDGEMENT

(1.) HEARD Shri V.R. Tamba, the learned Counsel appearing for the petitioners and Shri F.E. Noronha, the learned Counsel appearing for the respondents.

(2.) RULE. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the respondents waives service.

(3.) SHRI V.R. Tamba, the learned Counsel appearing for the petitioners has assailed the impugned order on the ground that the petitioners had already filed an application way back in the year 1993 for leave to produce the same documents and such application had not been disposed by the learned Judge until the passing of the impugned order. The learned Counsel further points out that along with the application filed in the year 1993, the petitioners had produced notarized certified copies of all the aforesaid documents as according to the petitioners the originals of the said documents were to be produced at the time of evidence. The learned Counsel further pointed out that the originals of the said documents were produced before this Court in Appeal From Order no.39/1992 and whilst disposing of the application for temporary injunction some of the documents relied upon by the petitioners were even considered by the Court. The learned Counsel further pointed out that the learned Judge has dismissed the application filed by the petitioners on the ground that the petitioners are not entitled to lead secondary evidence and that the petitioners cannot recall PW1 in view of the provision of Order 18 of the Civil Procedure Code and that such powers are not available to the Court to permit the petitioners to recall such witness. The learned Counsel further pointed out that the fact that such documents were in existence at the time of the application filed by the petitioners in the year 1993 has not been disputed by the respondents and the question of claiming that such documents have been fabricated cannot arise. The learned Counsel further pointed out that the learned Judge was not justified to come to the conclusion that no prejudice shall occasion to the petitioners in case the documents are not allowed to be produced, as according to him the said documents are very much relevant for the purpose of deciding the matter in controversy and it is not in dispute that the correspondence sought to be produced is referable to the dispute in the suit. The learned Counsel, as such, submits that the learned Judge has failed to exercise jurisdiction vested in him whilst passing the impugned order which calls for interference by this Court under Article 227 of the Constitution of India. The learned Counsel further pointed out that considering that the original documents are before this Court in the said Appeal From Order No.39/1992, the petitioners shall not press for the application filed under Section 65 of the Evidence Act for secondary evidence. The learned Counsel, as such, submits that the impugned order refusing to recall PW1 to produce the said documents be quashed and set aside.