Bombay High Court: Petitioners challenged the order dated 11-03-2020 passed by the Small Causes Court rejecting the application filed for recall of a witness for leading of primary evidence. Sandeep V. Marne, J., opined that recall of the witness for production of original documents would not amount to filling up a lacuna in evidence discovered on cross-examination. The Court thus disposed of the petition and set aside the impugned orders.
Petitioners instituted a suit seeking recovery of possession of the suit premises on the grounds of bonafide requirement, non-user, sub-letting, and additions/alterations. Petitioners submitted that Defendant 4 was residing at an address other than the address of the suit premises. Petitioners attempted to prove the said plea by seeking production of documents from Bank of India relating to Defendant 4. Thus, witness summon was issued to the officer of Bank of India for production of various documents desired by petitioners and in this regard, the Chief Manager of Opera House Branch was examined as a witness (PW-5).
During the cross-examination of PW5, an objection was raised about marking the photocopies of documents in evidence. The Judge, therefore, proceeded to mark only the account ledger and so far as the account opening form was concerned, the same was marked as ‘Article-P’ and photocopy of the passport was marked as ‘Article-P1’ on the ground that despite availability of original documents, only their photocopies were produced by the witness.
Petitioners thereafter filed an application seeking recall of PW5 for production of original documents for leading primary evidence, which was rejected by the Small Causes Court by an order dated 11-03-2020. The Small Causes Court held that the photocopy of the passport could not be proved by PW5, and that petitioner would have to follow the required procedure for exhibiting the passport of Defendant 4.
The Court observed that the Small Causes Court had not recorded any observations regarding production of the account opening form, nomination form and Form No. 60 and the order dated 11-03-2020 only referred to a copy of the account ledger already marked in evidence and photocopy of the passport. The Court opined that the Small Causes Court ought to have allowed the application directing the witness concerned to bring original account opening form, nomination form and Form No. 60.
The Court observed that the Supreme Court in Ram Rati v. Mange Ram, (2016) 11 SCC 296 and Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 held that the provisions of Order 18 Rule 17 of the Code of Civil Procedure, 1908 (‘CPC’) were to be exercised sparingly and not as a general rule, and thus, opined that recourse to recall of witness under Order 18 Rule 17 of the CPC should not be adhered to fill-up lacunae in evidence discovered on cross-examination. In the present case, however, PW5 was examined mainly to produce the records available with the Bank. Though he was mandated to produce original documents and he had the original account opening form, nomination form, Form No. 60, he committed a mistake in bringing only photocopies containing endorsement that the same were verified with the original. Thus, recall of the witness for production of the original documents would not amount to filling up a lacuna in evidence discovered on cross-examination.
The Court stated that Bank’s witness could not give evidence with regard to the passport as the Bank did not possess the original passport. The Court also stated that it would be open for petitioners to seek production of original passport from Defendant 4 and if he chooses not to produce the same, the Court could always draw adverse inference against him.
The Court disposed of the petition, set aside the impugned orders, and stated that the Small Causes Court shall issue witness summons to the Branch Manager, Bank of India, Opera House Branch, who shall produce original account opening form, nomination form and Form No. 60 in respect of Defendant 4. If the witness produces the original forms, the Small Causes Court shall verify the same with photocopies already placed on record and mark photocopies as exhibits by returning original forms, after grant of inspection to defendant, to the witness concerned.
[Aspi Jal v. Ratilal Bhukhabhai Gandhi, 2024 SCC OnLine Bom 2091, decided on 05-07-2024]
Advocates who appeared in this case :
For the Petitioners: Jamshed Master i/b Natasha Bhot.
For the Respondent: Darshit K. Jain i/b Divya D. Jain.
