MARATHA SAHAYYAK MANDAL Vs. BRIHANMUMBAI MAHANAGARPALIKA & ANR

JUDGEMENT

(1.) Admit. The learned Advocates appearing for the Respondents waive service. By consent taken up for final hearing.

(2.) One of the grievances of the Appellant is that the Respondent No.1-Corporation filed an affidavit of evidence of one Mahendra Nagindas Chauhan, the Sub-Engineer R-Central Ward and the said witness was not made available for cross-examination by the Advocate for the Plaintiff/Appellant. Shri Xavier appearing on behalf of Respondent No.1 states that at the relevant time the said witness was not available and now the said witness is very much available though he is placed under suspension. He stated that the witness will be in a position to appear before the trial Court on a date fixed by this Court and he will offer himself for cross-examination by the Advocate appearing for the Appellant/Plaintiff. Shri Xavier appearing for the Respondent No.1 further submitted that Respondent No.1 may be permitted to examine one more officer if examination of such officer is found necessary after conclusion of cross-examination of the said witness Shri Chauhan. Shri Mali appearing for the Respondent No.2 submitted that if the suit is to be sent back to enable the Advocate for the appellant to cross-examine the witness, a time bound programme deserves to be fixed. Shri Sawant appearing for the appellant submitted that now Respondent No.1 cannot be permitted to lead further evidence. He submitted that if further evidence is allowed to be led, then the other parties must also get an opportunity to lead further evidence.

(3.) It is a matter of fact that an opportunity was not available to the Appellant to cross-examine the said witness Mahendra Nagindas Chauhan. The Affidavit of evidence of the said witness is taken on record and has been relied upon by the Respondent No.1 before the trial Court. If the Respondent No.1 wants to rely upon the said evidence, surely opportunity must be made available to the Appellant-Plaintiff to test the said witness by cross-examination. Unless opportunity is available to cross-examine the said witness, his evidence will have to be ignored. As opportunity is to be granted to the Appellant to cross-examine the said witness, only on this ground, the decree passed by the trial Court deserves to be set aside and the suit deserves to be remanded back to the trial Court.