ERIC FERNANDES Vs. BALBIR SINGH CHABRA

JUDGEMENT

(1.) Heard Shri Agni, learned Counsel appearing for the Petitioner and Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents. Rule. Heard forthwith, with the consent of the learned Counsel. Learned Counsel appearing for the Respondents, waive service.

(2.) The above Writ Petition challenges the Order dated 17.03.2011, whereby an application filed by the Petitioner under Order 18 Rule 17 of the Civil Procedure Code to recall Pw. 1 and Pw. 2 for further cross examination, came to be rejected.

(3.) Shri Agni, learned Counsel appearing for the Petitioner has assailed the impugned Order essentially on the ground that the learned Judge whilst passing the impugned Order has gone on the assumption that the Court had no powers to recall a witness for cross examination at the instance of a party. The learned Counsel further points out that this aspect is no longer res integra as in the recent Judgment of the Apex Court (SC) in the case of K. K. Velusamy vs. Palanisamy,2011 3 AllMR 455 the Apex Court has held that such application for recall can be made even at the stage before the final arguments at the instance of the party. He further pointed out that, in any event, it does not preclude the Petitioner to call the opposite party/Plaintiff as his witness so as to produce a document which according to him, the Respondent nos. 1 and 2 are the authors. Learned Counsel further pointed out that the application came to be filed in view of the fact that the Respondents raised an objection for the production of one email message consisting of two letters received by the Petitioner from the Respondent nos. 1 and 2 as well as Ms. Umanda Faria. Learned Counsel further pointed out that the Petitioner has relied upon the said email message along with the list of documents filed along with the written statement and in view of the objections raised by the Respondent nos. 1 and 2 to the productions of the said email message, the Petitioner was forced to file the said application so as to recall the Respondent nos. 1 and 2 to prove the contents of the said document. The learned Counsel further pointed out that the learned Judge by an Order dated 28.06.2011 has marked the said message as 'X' subject to proof provided the Petitioner obtain a certificate as contemplated under Section 6S-B of the Indian Evidence Act. Learned Counsel further pointed out that the learned Judge has acted with material irregularity whilst passing the impugned Order and, consequently, the same deserves to be quashed and set aside. In support of his submission, the learned Counsel appearing for the Petitioner, has relied upon the Judgment of this Court dated 19.10.2011 passed in Writ Petition no. 652/2011 in the case of M/s. Ravalnath Builders vs. Mrs. Sebastiano Escolastica Beatriz Nunes Mendonsa.