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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

: NAGPUR BENCH : NAGPUR.

WRIT PETITION NO. 3400 OF 2015

SANJAY RAMBHAU SABLE AND ANOTHER

VERSUS

BHUJANGRAO BHIMRAO KALE AND ANOTHER

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Office Notes, Office Memoranda of

Court's or Judge's Order

Coram, appearances, Court's Orders

or directions and Registrar's order

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Mrs. S. W. Deshpande, Advocate for the petitioners

Mr. V. A. Kothale, Advocate for the respondent nos.1 and 2.

CORAM :

PRASANNA B. VARALE, J.

DATE : FEBRUARY 15, 2016.

Heard the learned counsel for the parties.

By this petition, the petitioners challenge the order

passed by the learned Joint Civil Judge, Junior Division,

Morshi, dated 26.02.2015 in Regular Civil Suit No.

20.2011 on application (Exh.68) seeking recalling of the

witness, thereby allowing the application.

The submission of the learned counsel for the

petitioners, which is also referred to in the order passed by

this Court while issuing notice, dated 26.06.2015, is the

respondents/plaintiffs had moved an application (Exh.64)

on 27.10.2014, stating therein that witness no.2 –

Shreekrushna Bhure, the Cadestral Surveyor was

examined and in his examination-in-chief, it was stated

that the land shown by letters A,B,C, in Survey No. 344 is

under cultivation, but in the deposition, though survey

no.344 was referred to, in the typing of the deposition, the

same was referred to as Survey No. 343. This fact came to

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the knowledge of the applicant when he obtained typed

copy of the deposition. It was prayed in the said

application that as there is a typographical error in the

deposition, the error be permitted to be corrected and

accordingly, the order be passed. The petitioners/original

defendants submitted reply to the application and

vehemently opposed the application on the ground that

there is no such typographical error. The deposition of

the witness was properly recorded and the same was

reflected in the typed version. The learned Joint Civil

Judge, Junior Division, Morshi, by order dated

17.12.2014, on hearing the parties rejected the

application on the ground that the evidence of the witness

P.W.2 was recorded by the learned predecessor of the

Court on16.08.2013 and there is no provision in the Code

of Civil Procedure to make any correction in the

deposition of any witness afterwards. Subsequently, on

29.12.2014, again an application (Exh.68) was moved,

seeking recall of the witness. It was submitted in the

application that earlier application for correction in the

deposition was filed, but the same was rejected by the

Court. It was further submitted that to clear the

ambiguity and to bring the facts before the Court, it would

be necessary to recall the witness. This application was

also opposed by the petitioners/defendants. The learned

Jt.CJJD, by the order dated 26.02.2015, allowed the

application, subject to payment of costs.

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Smt. Deshpande, the learned counsel for the

petitioners is for the very same purpose, the subsequent

application was filed. It was also the submission of the

learned counsel for the petitioners that by adopting such

practice, a party may call the witnesses for indefinite

period and the same would cause prejudice to the other

side.

Mr. Kothale, the learned counsel for the

respondents submitted that the petition is misconceived

for the reason that the second application was not for the

very same prayer of the earlier application, but was for a

different prayer name