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IN THE HIGH COURT OF BOMBAY AT PANAJI BENCH
C.V. Bhadang, J.
Augustinho C. Braganza - Petitioner
Versus
Sebastiao C. Braganza - Respondent
Writ Petition No. 711 of 2015
Decided On : 04-05-2016
Recall of Witness - Civil Procedure - Order 39 Rule 11 of CPC - The court discussed the interpretation of Order 39 Rule 11 of CPC and held that the breach of an order recalling a witness for cross-examination does not necessarily entail consequences under Order 39 Rule 11. The court emphasized that the power under Order 39 Rule 11 is discretionary and not mandatory, and in the present case, the only course open to the respondents would be to insist on drawing appropriate adverse inference.
Fact of the Case:
The petitioners challenged the dismissal of their suit for partition and other reliefs due to the failure of the plaintiff to attend for cross-examination as ordered by the court. The plaintiff's wife, who was also his power of attorney holder, expressed willingness to examine herself instead of the plaintiff.
Finding of the Court:
The court found that the impugned order dismissing the suit cannot be sustained as the breach of the order recalling a witness for cross-examination does not necessarily entail consequences under Order 39 Rule 11 of CPC. The court also emphasized that the power under Order 39 Rule 11 is discretionary and not mandatory.
Issues: The main issue was whether the failure to attend for cross-examination as ordered by the court would entail consequences under Order 39 Rule 11 of CPC.
Ratio Decidendi: The court held that the breach of an order recalling a witness for cross-examination does not necessarily entail consequences under Order 39 Rule 11 of CPC, and the power under Order 39 Rule 11 is discretionary and not mandatory.
Final Decision: The writ petition was allowed, the impugned order was set aside, and the suit was restored to the file of the trial court for disposal according to law. The trial court was also permitted to draw appropriate adverse inference, if any, on account of the failure of the petitioner to subject himself to further cross-examination.
C.V. Bhadang, J.
Rule. Rule made returnable forthwith. The learned Counsel for the Respondents waive service. Heard finally by consent of the parties.
2. By this petition the Petitioners who are original plaintiffs are challenging the Order dated 30.06.2015 passed by the learned Civil Judge Junior Division at Panaji in Regular Civil Suit No. 3/2006/D. By the impugned order application Exhibit-78 filed by the Respondent/Defendant has been allowed and the suit of the Petitioner is dismissed.
3. The brief facts are that the Petitioners have instituted the aforesaid suit against the Respondents for partition and other reliefs in which the Petitioner No. 1 was examined as PW-1. It appears that the Respondents had moved an amendment in respect of certain document which was permitted to be produced on record. Thereafter, Respondent applied to the learned Trial Court to recall PW-1 for cross-examination which was allowed. Indisputably, the said Order has been confirmed by this Court in Writ Petition No. 492/2014 on 20.02.2015. Be that as it may, in the meantime, PW-1 had taken over overseas assignment and in spite of grant of various opportunities, he did not remain present before the Court for cross-examination. The Plaintiff No. 2 who is the wife of Plaintiff no. 1 (PW-1) and also his power of attorney holder had shown willingness to examine herself instead of PW-1. The Trial Court found that this only showed that PW-1 had no intention to comply the Order of the Court and is deliberately evading the process. The Trial Court also found that no plausible explanation has come forth from the Plaintiff's side to "hold differently and to take a lenient view of the matter". It was in these circumstances that an application Exhibit-78 filed by the Respondents for dismissal of the suit has found favour with the Trial Court whereby the suit has been dismissed purportedly under Order 39, Rule 11 of CPC. The Trial Court has found that under Order 39, Rule 11 when the Court orders any party to do or not to do a thing during the pendency of suit and the party commits default or contravenes the Order, the provisions of Order 39, Rule 11 can be invoked. The Trial Court has also referred to definition of an 'Order' as appearing under section 2(14) of CPC to mean a formal expression of decision of Civil Court, which is not a decree. The Trial Court has thus found that the Order dated 11.10.2013 by which the PW-1 was recalled, falls within the definition of Order and it would be an interlocutory Order, breach of which would entail consequences under Order 39, Rule 11 of CPC.
4. I have heard learned Counsel for the Petitioners and the learned Counsel appearing for the Respondents. The learned Counsel for the Petitioner has placed reliance on various decisions as under:
(i) Sheshrao Raibhan Ingale Vs. Shilpa Sheshrao Ingale, reported in 2005(2) AllMR 184.
(ii) Ramavatrao Surajmal Modi Vs. Mulchand Surajmal Modi, reported in 2004(1) AllMR 822.
(iii) Ganpat Shankar Waghmare Vs. Smt. Anjalibai Rao Waghmare & Anr., reported in 2001 (3) AllMR 149.
(iv) Sitabai Kerba Deotarse And Ors. Vs. Anil Sabehrao Deotarse And Ors., reported in 2006 (5) BomCR 833.
(v) Ratnakar D. Patade Vs. Smita Pandurang Dalvi & Ors., reported in AIR 1996 Bom 69.
He submits that failure to attend in pursuance of an Order of recall cannot lead to the consequences under Order 39, Rule 11 of CPC.
5. The learned Counsel for the Respondents supports the impugned order. I have considered the rival circumstances and the submissions made and I do not find that the impugned order can be sustained. Normally, it is for the parties to the suit to decide which evidence to be led and which witness to be examined. Section 120 of the Evidence Act shows that the parties to the Civil Suit and their wives or husbands shall be competent witnesses. In the present case the Plaintiff No. 2, apart from being the wife is also the power of attorney holder of the Plaintiff No. 1. She had expressed willingness to
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