VADIRAJ NAGGAPPA VERNEKAR (D) THROUGH LRS.

V.

SHARAD CHAND PRABHAKAR GOGATE

Civil Appeal No. 1172 of 2009

FEBRUARY 24, 2009

[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

The Judgement of the Court was delivered by

ALTAMAS KABIR, J.

1. Leave granted.

2. The short question for decision in this appeal is whether a witness having

been examined by way of affidavit evidence can be recalled for giving further

evidence with regard to facts not mentioned in the affidavit.

3. The aforesaid question arises in respect of a suit filed by one Vadiraj

Naggappa Vernekar and Smt. Mainabai Ranade, being Suit No. S.925 of 1990,

before the learned Single Judge of the Bombay High Court, seeking a declaration

that the Letters of Administration obtained by one Sharadchandra Prabhakar Gogate

on 5

th November, 1998, in respect of the estate of Dr. Sudha Gogate, was not

binding on the plaintiffs or any of them and did not affect their right, title and interest

in the suit property, being Flat no.402, situated in Amogh Vikram Cooperative

Housing Society Ltd., Murari Ghag Marg, Prabhadevi, Bombay 400025. Vadiraj

Naggappa Vernekar died during the pendency of the suit and his legal

representatives were brought on record in his place. The appellant No.1, being the

wife of the deceased, was made plaintiff no.1A and his sons and daughters were

made plaintiff Nos.B, C and D respectively.

4. One Sadanand Sheshgiri Shet, who was alleged to be a witness to all the

transactions relating to the said flat, was appointed as Constituted Attorney by the

appellant and the other heirs of deceased Vadiraj Naggappa Vernekar and as

required under Order 17 Rule 4 CPC, his evidence by way of an affidavit was filed

before the learned Single Judge. While the evidence was still being recorded in the

suit, the appellant and the other plaintiffs moved Notice of Motion No.463 of 2006

before the learned Single Judge on 13

th February, 2006, urging that certain facts

which were necessary for proper adjudication of the suit had inadvertently been left

out in the affidavit affirmed by Sadanand Shet and that it was, therefore, necessary

to recall him for further examination-in-chief under the provisions of Order 18 Rule 17

CPC. By order dated 7

th July, 2006, the learned Single Judge dismissed the said

Motion upon holding that the witness could not be recalled to fill up the lacuna in his

examination-in-chief on affidavit. Appeal No.853 of 2006 filed by the appellant herein

was dismissed in limine by the Division Bench of the High Court on 1

st December,

2006, confirming the order of the learned Single Judge. The present appeal, by

leave, has been filed against the order of the Appeal Court dated 1

st December,

2006.

5. Learned Senior Advocate, Mr. P.S. Narasimha, who appeared for the

appellant, briefly submitted that the provisions of Order 18 Rule 17 CPC were very

wide and could be made at any stage to enable the Court to do complete justice

between the parties. For the sake of reference, the provisions of Order 18 Rule 17

CPC are reproduced hereinbelow:-

“17. Court may recall and examine witness. –

The Court may, at any stage of suit, recall any witness who has been examined

and may (subject to the law of evidence for the time being in force), put such

questions to him as the Court thinks fit.”

6. Mr. Narasimha also submitted that it has been held by way of judicial

pronouncements that the Court may recall and examine a witness not only suo motu

but also on an application that may be made by the parties to the suit. Learned

counsel also submitted that the affidavit of evidence of Sadanand Shet had been

prepared by the learned advocate, who had inadvertently left out certain vital facts

which were necessary for a complete and proper adjudication of the suit. He urged

that on account of the omission of the learned counsel, the plaintiffs/appellants

herein should not be made to suffer since the ev