IRENE BARBOSA Vs. FRANCIS THOMAS GONSALVES

JUDGEMENT

(1.) Heard Mrs. Agni, learned Counsel appearing for the Petitioner and Shri J. P. Mulgaonkar, learned Counsel appearing for the Respondent. The above Petition challenges the Order dated 09.12.2011 passed by the learned Civil Judge, Junior Division, at Panaji, whereby an application filed by the Petitioner to adopt the cross examination of Dw. 1 which was conducted in Regular Civil Suit No. 40/ 1999/B, came to be rejected.

(2.) Mrs. Agni, learned Counsel appearing for the Petitioner has assailed the impugned Order essentially on the ground that the learned Judge has gone on the wrong assumption that there were no provisions or power in law permitting the parties to adopt the cross examination which was carried out in another proceedings. Learned Counsel has taken me through the Judgments of the Apex Court reported in the case of Rajendra Prasad Gupta vs. Prakash Chandra Mishra & Ors., 2011 2 SCC 705 wherein it has been held therein that even assuming there are no specific powers under the Civil Procedure Code to allow a particular request, the Court can always exercise powers under Section 151 of the Civil Procedure Code and allow such requests. Learned Counsel further pointed out that the learned Judge has also gone on the wrong premise to the effect that the Petitioner wanted to adopt only part of the cross examination when, according to the learned Counsel, the whole cross examination in the earlier proceedings was sought to be adopted. It has also been contended by the learned Counsel appearing for the Petitioner that a lot of judicial time would be saved and there would be no duplication of evidence of the cross examination of Dw. 1. The learned Counsel, as such, submits that there is a jurisdictional error committed by the learned Judge which requires interference of this Court under Article 227 of the Constitution of India. The learned Counsel has also relied upon the Judgment of the Apex Court reported in: the case of K. K. Velusamy vs. N. Palanisamy, 2011 11 SCC 275.

(3.) On the other hand, Shri Mulgaonkar, learned Counsel appearing for the Respondents has supported the impugned Order. Learned Counsel further pointed out that Dw. 1 desires to proceed with the cross examination and, as such, it is not proper for the Petitioner to adopt the cross examination in the earlier proceedings in the present suit. Learned Counsel further pointed out that at the time when the earlier cross examination had taken place, Dw. 1 was not in a position to answer any question in respect of some documents at the relevant times. Learned Counsel appearing for the Respondents has pointed out that there is no failure of justice in case the impugned Order is allowed to stand as, according to him, no prejudice shall be caused to the Petitioner as the learned Judge has permitted to proceed with the cross examination of Dw. 1. As there is no failure of justice to the Petitioner, the question of invoking jurisdiction under Article 227 of the Constitution of India, would not arise.