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M/s Mahadhan Real Estates Ltd. & Another v/s M/s. Anjali Real Estates Pvt. Limited & Others

    Writ Petition Nos. 73 of 2004 & 74 of 2004

    Decided On, 08 August 2014

    At, In the High Court of Bombay at Goa

    By, THE HONOURABLE MR. JUSTICE F.M. REIS

    For the Petitioner: S.S. Kantak, Senior Advocate with A. Kamat, Advocate. For the Respondents: R1, A. R. Kantak, Advocate.



Judgment Text

Oral Judgment:

1. The above petitions challenge an order passed by the learned Civil Judge Senior Division, Panaji whereby an application filed by the respondents to issue summons to the witness PW2 came to be allowed.

2. Briefly, the facts of the case are that the suit filed by the petitioners is for specific performance of a contract and in such suit after examining PW1 the evidence of PW2 was in progress. It appears that PW2 was substantially cross examined but however on the date fixed for further cross examination PW2 remained absent and the learned Judge refused to adjourn the matter for such cross examination. The mater was thereafter posted by the learned Judge to examine as to what action is to be taken with regard to the incomplete evidence. In the meanwhile, the respondents filed an application to issue a warrant of arrest against PW2 to remain present in the Court for his further cross examination. The learned Judge by an order dated 25.11.2003 issued a warrant of arrest. Prior to that on 14.11.2003 an order was passed on the application filed by the respondents with regard to the incomplete evidence of PW2. The petitioners challenged both the orders before this Court in Writ Petition No. 617 of 2003. The petition came to be allowed by judgment dated 26.02.2004. The learned Single Judge of this Court at paras 7, 8, 9, 12 & 13 has observed thus:

'7. By the order dated 14.11.2003 passed by the trial Court, the evidence of the witness Samir Audi was kept open. The petitioners were further directed to make available their witness on the next date of hearing. This order has been passed despite the earlier order of 5.11.2003 rejecting the application made on behalf of the petitioners for adjournment as their witness was unwell. Once the application for the adjournment was refused, the trial Court ought not to have directed the petitioners to make available their witness for cross examination. The trial Court instead ought to have considered what was the effect of the petitioners not having produced their witness for cross examination. At best, the trial Court could have drawn adverse inference, since the petitioners had not made available their witness for cross examination. The trial Court could have also considered whether the entire evidence of that witness was to be discarded or whether it could be considered. The trial court could also have considered what was the evidentiary value of the deposition recorded till then. Once having refused the application made by the petitioners for an adjournment on the ground that their witness was unwell, the trial Court could have directed the petitioners to make available their witness for cross examination. Therefore, the order passed on 14.11.2003 must be set aside.

8. The order passed on 25.11.2003 also is wholly without jurisdiction. The trial Court could not have issued a non-bailable warrant at the instance of respondent No.1 against the witness of the petitioners merely because that witness was not present in the Court. When the cross examination was adjourned on 15.10.2003, the witness Samir Audi was not bound over by the Court. The question of issuance of a non-bailable warrant does not arise if a party does not subject himself to cross examination inspite of an order from the Court. The Court would necessarily have to consider whether it was sufficient to rely on his examination-in-chief. But that would not give the Court jurisdiction to issue a non-bailable warrant against the witness.

9. In the case of The Municipal Corporation of Greater Bombay vs. Lal Pancham and ors. (supra), the Apex Court has held that there are certain limits which the law places upon the powers of the Court in dealing with a case. The Court could not compel a party to examine any particular witness.

12. In the case of Steelage Industries Ltd., this Court has considered the scope of Order 18, Rule 17 of C.P.C. Similarly, in the case of Balkrishna Shivappa Shetty vs. Mahesh Nenshi Bhakta and ors., AIR 2003 Bombay 293, this Court has considered the provisions of Order 18, Rule 17 and held that these provisions of law do empower the Court to recall the witness for the purpose of cross examination of by Court itself. It has further observed that by ordering recall of a witness for the purposes of further cross examination on behalf of the opponent purportedly in exercise of power under Order 18, Rule 17, the trial Court had clearly acted in error of its jurisdiction as well as contrary to the provisions of law. It has also been observed that the Court under its inherent powers under Section 151 C.P.C. cannot exercise them in a manner which is contrary to the procedure expressly provided for in the Code.

13. The Trial Court has acted clearly without jurisdiction and the orders passed by it deserve to be set aside. There is no doubt that it has exceeded its jurisdiction vested in it in law by directing issuance of non-bailable warrant. It is for the trial Court to consider as to whether the evidence recorded thus far can be relied upon or whether it should be discarded in toto. Both the impugned orders are set aside. Rule made absolute with costs.'

3. This Court inter-alia held that the question of issuing warrant of arrest against PW2 was not justified and further held that with regard to the incomplete evidence it is for the Trial Court to consider as to whether the evidence recorded can be relied upon or whether it should be discarded in toto. Consequently, the orders passed by the learned trial Judge were quashed and set aside.

4. In the meanwhile, the respondents filed an application to issue summons to PW2 which came to be allowed by the impugned order. Being aggrieved by the said order, the petitioner filed the present petition.

5. Mr. S. S. Kantak, learned Senior Counsel appearing for the petitioners has pointed out that the application filed by the respondents was abuse in process of law inasmuch as once the matter as to whether there was justification to call PW2 by warrant of arrest was under consideration by this Court, the question of the respondents filing an application to issue summons to such witness is totally mis-placed. The learned Senior Counsel further pointed out that the respondents themselves objects to further examine PW2 and as such it was not open to the respondents to direct the said witness to be present. The learned Senior Counsel thereafter has taken me through the said observation of the learned Single Judge of this Court and pointed out that the question as to whether PW2 has to be examined or not stand concluded by the said order. The learned Senior Counsel thereafter has taken me though the impugned order and pointed out that the leaned Judge has totally misconstrued the provisions of law to arrive at an erroneous finding that summons be issued to PW2. The learned Senior Counsel as such points out that the impugned order be quashed and set aside.

6. On the other hand, Mr A. R. Kantak, learned counsel appearing for the respondents has supported the impugned order. The learned counsel pointed out that in case the procedure as pointed out by the learned Senior Counsel appearing for the petitioners is followed, it would result in a situation wherein a party would not examine the witnesses keeping the evidence incomplete. The learned counsel further pointed out that as such the provisions of Sections 30 and 32 of the Civil Procedure Code clearly provides that the Court can call to answer interrogatories and further even issue summons to such witnesses. The learned counsel thereafter has taken me though the impugned order and pointed out that the learned Judge was justified to pass the said order. The learned counsel in support of his submissions has relied upon the judgments reported in AIR 1995 Rajasthan 209 in the case of Smt. Uchhabkanwar and another V/s Legal Representatives of Ramswaroop and others., AIR 1999 SC 325 in the case of Jagriti Upbhogta Kalyan Parishad and others Vs U.O.I., and others and 2012(2) Bom. C.R. 403 in the case of Ravalnath Builders V/s Sebastiano Escolastica Beatriz Nunes Mendonsa @ Beatriz Mendonca.

7. I have considered the submissions of the learned counsel and I have also gone through the records. The reliance by Mr. Kantak, learned counsel appearing for the respondents under the provisions of Sections 30 and 32 of the Civil Procedure Code cannot be accepted. On perusal of the application filed by the respondents no such provisions were invoked while praying for an order to issue summons. Apart from that, there are no interrogatories sought by the respondents and as such, the question of invoking the said provisions of the Civil Procedure Code to justify the impugned order cannot be accepted.

8. Apart from that, the issue as to whether the respondents can force the attendance of PW2 stands concluded by the learned Single Judge of this Court in same proceedings as manifested in the observations referred to herein above. This Court has taken a view that

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the respondents cannot force the appearance of PW2 and further held that the consequence in terms of the Evidence Act and even drawn adverse inference is a matter which would have to be examined at the time of appreciating evidence on record. In the present case, it is not the contention of the respondents that they want to examine PW2 as their witness. In such circumstances, the respondents are always at liberty if they are so entitled to take the inferences in law in terms of the provisions of the Evidence Act for the failure on the part of the petitioners to examine PW2. Considering the said observations of the learned Single Judge of this Court, I find that the question of taking any contrary view in the same proceedings would not at all be justified. 9. In view of the above, the impugned order passed by the learned Judge cannot be sustained and deserves to be quashed and set aside. Subject to the above, Rule is made absolute in terms of prayer clause (a) with no order as to costs.
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