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2024 Supreme(Online)(Bom) 133
HIGH COURT OF BOMBAY
SANDEEP V. MARNE, J
SOLI SORABJEE (DELETED SINCE DECEASED) AND ORS – Appellant
Versus
M/S. WARDEN AND COMPANY PVT LTD AND ORS – Respondent
WP/8719/2024
Mr. Nikhil Sakhardande, Senior Advocate with Mr. Pralhad Paranjape, Ms Shubra Swami and Mr. Rupesh M. Geete i/b. M/s. Satyaki Law Associates for Petitioner. Mr. Vineet Naik, Senior Advocate with Mr. Abhishek Adke i/b. M/s. Zunzarrao and Co. for Respondents.
The court emphasized that recalling a witness must be justified and not used to fill gaps in evidence, especially in long-pending cases.
Headnote:(A) Civil Procedure Code, 1908 - Order 18 Rule 17 - Indian Evidence Act, 1872 - Sections 137 and 138 - Recall of witness - Application for recall of witness after significant delay and without specific grounds is impermissible - The learned Judge of the Small Causes Court erred in allowing the recall of DW1, whose evidence was concluded on 13 March 2023, after an 8-month delay and 22 adjournments, without justifiable reasons. (Paras 4, 7, 14, 17)
(B) Delay in proceedings - The long pendency of the suit since 1986 necessitates expeditious decision-making by the court, which was not considered by the learned Judge. (Paras 16, 17)
Facts of the case:
The petitioners challenged an order allowing the recall of a witness in a long-pending suit for possession of premises, alleging that the defendant sought to delay proceedings. The suit has been pending since 1986, with significant delays attributed to the defendant.
Findings of Court:
The court found the order allowing the recall of the witness indefensible due to the lack of specific grounds and the excessive delay in proceedings.
Issues: The main issues were whether the recall of the witness was justified given the delay and whether the learned Judge erred in allowing the application without proper grounds.
Ratio Decidendi: The court ruled that the provisions for recalling a witness should be sparingly exercised and not used to fill gaps in evidence, emphasizing the need for expeditious resolution of long-pending cases.
Result: Writ petition allowed; order set aside.
1.Rule. Rule is made returnable forthwith. With consent of the parties, Petition is taken up for hearing and final disposal.
2.Petitioners have filed this petition challenging order dated 3 April 2024 passed by the learned Judge of the Small Causes Court at Mumbai on ___Page No. of ___ 24 June 2024 MEGHA SHREEDHAR PARAB Digitally signed by MEGHA SHREEDHAR PARAB Date:
2024.06.27 +0530 2024:BHC-AS:24989 application at Exhibit-146 filed by Defendant, by which Defendant’s witness (DW1) has been permitted to be recalled for re-examination, for clarification and for explanation.
3.R.A.E. Suit No.1966/6048 of 1986 is filed by Plaintiffs in Small Causes Court at Mumbai seeking recovery of possession of the suit premises being flat on second floor including garage in the compound of the building ‘West Hill’, situated at 27, Napean Sea Road, Mumbai-400 006. It appears that Plaintiffs have filed their evidence in December 2013 and cross-examination of Plaintiffs’ witnesses was concluded on 29 January 2020. Respondent No.1, it is alleged, kept seeking adjournments for filing affidavit of evidence and ‘no evidence order’ came to be passed by the Small Causes Court on 25 July 2022. The application filed by Defendant was allowed and ‘no evidence order’ was recalled, subject to payment of cost on 8 August 2022. On 7 September 2022, the Defendant filed its affidavit of evidence. By 13 March 2023 cross examination of the witnesses of the Defendant was concluded. Petitioners allege that Defendant failed to file evidence closure pursis thereby delaying final arguments in the Suit. According to Petitioners, the suit was adjourned from time to time between 17 March 2023 till 31 October 2023 on various counts at the instance of the Defendants. It appears that there was change in the Advocate of Defendant on 31 October 2023. On 10 November 2023, Defendant filed application seeking recall of DW1 for re-
- examination. The application was opposed by Plaintiffs by filing reply. The learned Judge of the Small Causes Court has allowed the application at Exhibit-146 and has recalled DW1 for re-examination, for clarification and explanation with liberty to the Plaintiffs to cross examine DW1 on such ___Page No. of ___ 24 June 2024 clarifications and explanations. Aggrieved by order dated 3 April 2024, Petitioners have filed the present petition.
4.Mr. Sakhardande, the learned senior advocate appearing for Petitioners would submit that the learned Judge of the Small Causes Court has committed gross error in allowing the application at Exhibit-146 filed by Defendant with the sole objective of somehow delaying decision of the Suit. That the Suit is pending since the year 1986 and the learned Judge ought to have considered long pendency of the Suit coupled with deliberate attempts made by the Defendant to delay in decision of the Suit. Taking me through the chronology of the events after conclusion of cross-examination of DW1, Mr. Sakhardande would submit that DW1 did not file evidence closure pursis for considerable time. That the impugned order has the effect of recalling witness, whose evidence was concluded one year ago on 13 March 2023. Mr. Sakhardande would submit that the learned Judge has erred in relying on judgment of this Court in Gurdial Singh vs. M/s. Arudatta Triotex Engineers Pvt. Ltd. 2011(5) Mh.L.J. 889 in which case, the application for recalling of the witness was filed on immediate next date. That in the present case, the said application was filed after more than eight months of conclusion of evidence of DW1. He would take me through the application filed by Defendant at Exhibit 146 to demonstrate that the exact purpose for which recall of the witness is sought is not even disclosed in the said application. Mr. Sakhardande would rely upon judgment of the Apex Court in Vadiraj Naggappa Vernekar (dead) through LS. Vs. Sharadchandra Prabhakar Gogate 1 in support of his contention that witness cannot be
1. 2009 4 SCC 410. ___Page No. of ___ 24
