Sunday, 24 July 2016

Whether court can permit recalling of witness after case is closed for judgment?

The  learned  counsel   for  respondent   contended
that once arguments are commenced, there could be no
re­opening of evidence or recalling of any witness. This
contention is raised by extending the convention that
once arguments are concluded and the case is reserved
for   judgment,   the   court   will   not   entertain   any
interlocutory   application   for   any   kind   of   relief.   The
need for the court to act in a manner to achieve the
ends of justice (subject to the need to comply with the
law)   does   not   end   when   arguments   are   heard   and
judgment is reserved. If there is abuse of the process of
the court, or if interests of justice require the court to
do something or take note of something, the discretion
to do those things does not disappear merely  because
the   arguments  are   heard,   either  fully   or   partly.  The
convention that no application should be entertained
once the trial or hearing is concluded and the case is
reserved   for   judgment   is   a   sound   rule,   but   not   a
straitjacket formula. There can always be exceptions in
exceptional   or   extra­ordinary   circumstances,   to   meet
the ends of justice and to prevent abuse of process of
court,   subject   to   the   limitation   recognized   with
reference to exercise of power under section 151 of the
Code.  Be that as it may. In this case, the applications
were made before the conclusion of the arguments. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7688 OF 2013
M/s. Mukund Iron Staff Association
versus
 Vasant Ramchandra Patil 

CORAM : R. M. SAVANT, J.
DATE   : 18th February 2015
Citation:2016 (3) ALLMR 721


2 The writ jurisdiction of this Court is invoked against the order
dated 2/8/2013 passed by the learned Judge of the City Civil Court, Greater
Bombay by which order the Application being Notice of Motion No.2461 of
2013 filed by the Petitioner/Plaintiff for re­calling of its witness and tendering
additional affidavit of examination in chief,  for leading evidence in terms of
Section 16(c) of the Specific Relief Act, 1963 came to be rejected.
3 Shorn of unnecessary details, a few facts, which are necessary for
the adjudication of the above Petition, can be stated thus :­   The Petitioner
herein is the original Plaintiff and the Respondents herein are the original
Defendants in the suit which was initially filed in this Court being H C Suit
No.2526   of   1988.   The   said   suit   was   filed   for   specific   performance   of   4
agreements dated 13/2/1975 in respect of 4 pieces of land which were agreed

to be sold to the Plaintiff. The Plaintiff is a Co­operative Housing Society of the
employees of one Mukund Iron.  It seems that the Plaintiff had also purchased
other   plots   of   land   from   the   Defendants.   The   Defendants,   it   seems   had
conveyed the other plots of land which were purchased but in spite of having
been called upon to do so had failed to execute the conveyance deeds in
respect of the 4 plots of land covered by the agreements dated 13/2/1975.
The Plaintiff was therefore constrained to file the suit in question for specific
performance.
4 In the context of the challenge raised in the present Petition, it is
required to be noted that in  Paragraph 14 of the  plaint, the  Plaintiff  has
referred to the letters by which the Plaintiff had called upon the Defendants to
execute the conveyance and it has been averred that the Plaintiffs have shown
their readiness and willingness to pay the balance of the purchase price viz.
Rs.7,67,250/­ but the Defendants on one pretext or the other have failed and
neglected to come forward to execute the conveyance in respect of the said
remaining area particularly the lands covered by the 4 agreements.  The said
paragraph   is   followed   by   paragraphs   15   and   16   in   which   paragraphs   the
Plaintiff   has   further   reiterated   its   case   in   respect   of   its   readiness   and
willingness.
5 The  Defendants have  filed their written  statement pursuant to

which the Issues came to be framed by a learned Single Judge of this Court on
3/12/2009 and amongst the issues framed was Issue No.4 which reads thus :­
“Issue No.4   : Whether the Plaintiffs prove that they
were always ready and willing and are still ready and
willing to perform their part of the agreements?
It is thereafter that the Commissioner came to be appointed for recording of
evidence by a learned Single Judge of this Court. The affidavit of evidence was
filed by the Plaintiff on 13/1/2010 along with the compilation of documents.
The documents were numbered on 29/4/2011 whilst the suit was pending in
this Court. The Commissioner thereafter recorded the evidence and the 3 sets
of Defendants being Defendant Nos.1(A) to 1(C), Defendant Nos.5 to 15, and
the Defendant Nos.2(D) and 2(E) have cross examined the Plaintiff's witness
which cross examination covered the aspect of the readiness and willingness of
the Plaintiff.
6 The suit came to be transferred to the City Civil Court, Greater
Bombay in October 2012 on the pecuniary jurisdiction of the City Civil Court
being   enhanced.     The   Plaintiff   closed   its   evidence   on   21/6/2013.     The
Defendants did not lead any evidence and accordingly closed their evidence.
The   suit   is   therefore   at   the   stage   where   the   arguments   are   to   be   heard.
However, on 29/6/2013 an application came to be filed by the Defendant
Nos.2(c) and 2(d) for directions to be issued to the Plaintiff to produce the
documents which have been mentioned in paragraph 14 of the plaint. The said

documents relate to the readiness and willingness of the Plaintiff. The said
application came to be rejected by the Trial Court by an order passed on the
same day on the ground that the said application could not be allowed and if
the Plaintiff fails to produce the documents mentioned in paragraph 14 of the
plaint, then adverse inference would be drawn against the  Plaintiff.   It is
thereafter that the instant Notice of Motion being No.2461 of 2013 came to be
filed by the Plaintiff for the reliefs which have been adverted to in the earlier
part of this order. In the affidavit in support of the Motion the ground stated
therein is that due to inadvertence the averments relating to the documents in
support of the case of readiness and willingness were not made in the affidavit
in examination in chief filed by the Plaintiff.   Hence leave of the Court was
sought   for   recalling   of   the   Plaintiff's   witness   and   for   permission   to   file
additional affidavit of examination in chief of the Plaintiff's witness. 
7 The said application was opposed to on behalf of the Defendant
Nos.1(A) to 1(C) by filing affidavit in reply of one Dr. Nitin Vasant Patil. The
objection was on the ground of delay as also on the ground that though the
documents have been mentioned in the plaint, the Plaintiff has not produced
the same, and therefore, the Trial Court has passed an order on the application
filed by the Defendant Nos.2 (c) and 2(d) for adverse inference being drawn
against the Plaintiff. It is on the said ground that the Notice of Motion was
opposed to on behalf of the said Defendant Nos.1A to 1C.

8 The Trial Court considered the said Application being Notice of
Motion   No.2461   of   2013   and   as   indicated   above   by   the   impugned   order
rejected the same. The gist of the reasoning of the Trial Court is that since the
application is referable to Order XVIII Rule 17 of the Code of Civil Procedure,
and since the evidence of the Plaintiff is complete, the Application could not be
allowed as the same would amount to filling up the lacuna in the evidence of
the Plaintiff.  The Trial Court has relied upon the judgment of the Apex Court
reported in (2009) 4 SCC 410 in the matter of Vadiraj Naggappa Vernekar
(Dead)   Through   LRs   v/s.   Sharadchandra   Prabhakar   Gogate.     The   Trial
Court observed that the provisions of Order XVIII Rule 17 of the Code of Civil
Procedure can be invoked only for the purpose of clarifying the material that
has been placed on record in order to reach a proper conclusion and could not
be invoked to fill up the lacuna in the evidence.  The Trial Court accordingly by
the impugned order dated 2/8/2013 has rejected the said application being
Notice of Motion No.2461 of 2013.   As indicated above it is the said order
dated 2/8/2013 which is taken exception to by way of the above Writ Petition.
9 Heard the learned counsel for the parties. The learned counsel
appearing on behalf of the Petitioner Shri S M Oak would contend that in
terms of the law laid down by the Apex Court in  Vernekar's case (supra) as
also the judgment of the Apex Court reported in (2011) 11 SCC 275 in the ]

matter of K K Velusamy v/s. N Palansamy, the Trial Court is not powerless in
allowing the application for recalling of the witness and for permitting the
Plaintiff to adduce additional evidence if interest of justice so requires.   The
learned counsel for the Petitioner would contend that in the instant case the
plaint   ex­facie   discloses   that   the   averments   relating   to   the   readiness   and
willingness have already been made and therefore this is not a case where the
Plaintiff is seeking permission to lead evidence in respect of the readiness and
willingness in the absence of pleadings.  The learned counsel would contend
that it is through inadvertence or mistake that the averments relating to the
documents to buttress the case of the Plaintiff as regards the readiness and
willingness remained   to be incorporated in the affidavit of examination in
chief.  The learned counsel in support of this contention would placed reliance
on the judgment of the Apex Court in  Velusamy's  case (supra) and would
contend that the paramount consideration has to be the interest of justice.  The
learned counsel would contend that grave prejudice would be caused to the
Plaintiff, if the Application is not allowed as in the absence of the said evidence
grave prejudice would be caused to the Plaintiff. The learned counsel would
draw the Court's attention to the fact that pursuant to the agreements to sale
and the power of attorney executed by the Defendants, 15 buildings have been
constructed   in   the   mid   eighties   wherein   the   members   of   the   society   are
residing, the buildings are constructed on the lands which have been conveyed
as   also   the   lands   covered   by   the   agreements   in   respect   of   which   specific

performance is sought as all the plots have been amalgamated.
10 Per   contra,   the   learned   counsel   appearing   on   behalf   of   the
Respondent Nos.1(a) to 1(c) Shri Merchant would contend that the Plaintiff
having been cross examined extensively by the Defendants even on the aspect
of   readiness   and   willingness   cannot   be   now   permitted   to   lead   additional
evidence   as   the   same   would   amount   to   Plaintiff   being   permitted   to   lead
evidence to fill up the lacuna which is there in the evidence.   The learned
counsel drew this Court's attention to the cross examination of the Plaintiff's
witness which was conducted before the Court Commissioner on the aspect of
readiness and willingness.  The learned counsel would contend that though the
Apex Court has held that in the interest of justice the course of action of
recalling the witness can be permitted. The facts of the case before the Apex
Court in Vernekar's case (supra) are identical to the facts of the present case
and   therefore   the   Apex   Court   in   the   said   case   having   refused   to   permit
additional evidence from being led, the same analogy would have to be applied
to the Plaintiff in the instant case  as in the instant case the Plaintiff was very
well aware of the material which it had to place on record in respect of the
case of the readiness and willingness and having not done so, the Plaintiff now
cannot   be   permitted   to   adduce   additional   evidence   and   bring   the   said
documents on record. The learned counsel sought to distinguish the judgment
of the Apex Court in Velusamy's case (supra) on the basis of the fact that in

Velusamy's  case (supra) the facts in respect of which the permission to file
additional affidavit of evidence was sought was in respect of the events which
had taken place post the filing of the suit and in fact just before the arguments
had commenced.  Such is not the case in the instant matter, according to the
learned counsel and therefore invocation of Order XVIII Rule 17 of the Code of
Civil   Procedure   or   Section   151   of   the   Code   of   Civil   Procedure   cannot   be
permitted.
11 The learned counsel appearing on behalf of the Respondent Nos.9
to 15 Shri Bodke would support the submissions made by the learned counsel
for the Respondent Nos. 1(a) to 1(c) Shri Merchant, however, in addition
would contend that the instant Notice of Motion was filed after the application
filed by the Defendant No.2 (c) and 2(d) was rejected by the Trial Court and is
therefore an afterthought. The learned counsel would contend that having
regard to the evidence which had come on record on behalf of the Plaintiff,
that the Defendants did not choose to lead any evidence.
12 The learned counsel appearing on behalf of the Respondent Nos.2
(d) and 2(e) Shri Khatri would also support the submissions made by the
learned counsel for the Respondent Nos.1(a) to 1(c) Shri Merchant, however,
in addition would contend that the delay and laches in filing the Notice of
Motion has not been properly explained by the Plaintiff, and therefore, this

Court would not permit the Plaintiff to invoke Order XVIII Rule 17 of the Code
of Civil Procedure or Section 151 of the Code of Civil Procedure.
13 Having   heard   the   learned   counsel   for   the   parties,   I   have
considered the rival contentions.   The question that is posed in the above
Petition is whether the Plaintiff should be allowed to lead additional evidence
and thereby re­open its evidence.  To answer the said question the facts which
have been narrated herein above would have to be re­visited.   As indicated
above,   the   suit   in   question   has   been   filed   for   specific   performance   of   4
agreements dated 13/2/1975 in respect of the 4 plots of land.  It appears that
the owners had also agreed to sell other plot of lands to the Plaintiff's society,
save and except the 4 lands which are the subject matter of the 4 agreements
of which specific performance is sought, the other lands have been conveyed to
the  Plaintiff  society.   It is also required to be  noted that pursuant to the
agreements to sale and the power of attorney executed by the owners the
Plaintiff society has constructed 15 buildings for its members, which members
as mentioned herein above are belonging to the company known as Mukund
Iron.     It   seems   that   the   said   construction   was   carried   out   after   the
amalgamation of all the plots. The said buildings have been constructed in the
early eighties and are presently in occupation of the Plaintiff's members.  In so
far as the agreements in question are concerned, as indicated herein above, in
paragraphs   14   to   16   the   Plaintiff   has   pleaded   its   case   of   readiness   and

willingness to perform its part of the agreements and has also pleaded the
refusal   of   the   Defendants   to   abide   by   the   terms   and   conditions   of   the
agreements. The Plaintiff has also referred to the documents in support of the
said case which find place in paragraph 14 of the plaint.  No doubt the affidavit
of evidence  of the witness of the Plaintiff was filed wherein the evidence in
respect of the case of the readiness and willingness of the Plaintiff  remained to
be incorporated.  The witness of the Plaintiff has been cross examined also on
the aspect of readiness and willingness.   The fact that the Defendants have
chosen to cross examine the Plaintiff's witness on the aspect of readiness and
willingness shows that the parties were knowing as to in respect of what
matters they were litigating.  The anxiety of the Defendants can also be seen
from  the fact that the Defendant Nos. 2(c) and 2(d) had filed the application
for a direction to be issued to the Plaintiff to produce the documents which are
mentioned in paragraph 14.  The Trial Court has rejected the said application
by holding that such a direction could not be issued and if the Plaintiff does
not produce the said documents then adverse inference can be drawn against
the Plaintiff.  It is thereafter that the instant Notice of Motion came to be filed
for the relief which has been adverted to herein above. In so far as Order XVIII
Rule 17 of the Code of Civil Procedure is concerned, the same has been the
subject   matter   of   interpretation   from   time   to   time.   The   Apex   Court   in
Vernekar's case (supra) was also concerned with the application made by the
Plaintiff in the said case for being permitted to lead additional evidence.  The

Apex Court in the facts of the said case had come to a conclusion that the
person who had filed the affidavit of evidence was knowing the facts right from
the beginning and therefore did not permit the Plaintiffs in the said case to
adduce the additional evidence as the Apex Court was of the view that granting
permission in the said case would amount to the Plaintiffs being permitted to
fill up the lacuna in the evidence. 
14 The said provision had also come up before the Apex Court for
interpretation in Velusamy's case (supra).  In the said case applications by the
Defendant/Appellant under Order XVIII Rule 17 and Section 151 of the Code
of   Civil   Procedure   were   for   recall   of   the   witness   and   for   leading   and/or
reopening the evidence filed on the basis that after the suit was set down for
arguments, the conversation between the Plaintiff and the Defendant and some
of   the   witnesses   was   recorded,   which   conversation   disclosed   that   the
transaction was in the nature of a money lending transaction which was the
case   of   the   Defendant   in   the   suit.   Since   the   compact   disc   containing   the
conversation which had taken place at the contemporaneous time when the
suit was being heard and since the Defendant/Appellant sought to produce the
compact   disc   as   and   by   way   of   additional   evidence,   that   the   Apex   Court
deemed it appropriate to allow the application. The Apex Court held that after
the deletion of Order XVIII Rule 17A for reopening of evidence and recall of
witness for further examination or cross examination, for purposes other than

securing clarification required by the Court, the inherent power under  Section
151 of the Code, subject to its limitations, can be invoked in appropriate cases.
However, in the context of the present case, the observations of the Apex Court
in Paragraphs 12, 14, 15 and 19 of the said Report are relevant. The said
paragraphs are reproduced herein under for the sake of ready reference :­
12 The   respondent   contended   that   section   151
cannot be used for re­ opening evidence or for recalling
witnesses. We are not able to accept the said submission
as   an   absolute   proposition.   We   however   agree   that
section 151 of the Code cannot be routinely invoked for
reopening evidence or recalling witnesses. The scope of
section 151 has been explained by this Court in several
decisions (See : Padam Sen vs. State of UP­AIR 1961 SC
218; Manoharlal Chopra vs. Seth Hiralal ­ AIR 1962 SC
527;  Arjun Singh vs. Mohindra Kumar  ­ AIR 1964 SC
993;   Ram  Chand  and   Sons  Sugar   Mills  (P)   Ltd.  vs.
Kanhay   Lal   ­   AIR   1966   SC   1899;  Nain   Singh   vs.
Koonwarjee ­ 1970 (1) SCC 732; The Newabganj Sugar
Mills Co.Ltd. vs. Union of India  ­ AIR 1976 SC 1152;
Jaipur   Mineral   Development   Syndicate   vs.
Commissioner of Income Tax, New Delhi ­ AIR 1977 SC
1348;  National   Institute   of   Mental   Health   &   Neuro
Sciences vs. C Parameshwara ­ 2005 (2) SCC 256; and
Vinod Seth vs. Devinder Bajaj  ­ 2010 (8) SCC 1). We
may summarize them as follows: 
(a) Section 151 is not a substantive provision which
creates or confers any power or jurisdiction on courts. It
merely recognizes the discretionary power inherent in
every   court   as   a   necessary   corollary   for   rendering
justice in accordance with law, to do what is `right' and
undo what is `wrong', that is, to do all things necessary
to secure the ends of justice and prevent abuse of its
process. 
(b) As the provisions of the Code are not exhaustive,
section 151 recognizes and confirms that if the Code
does  not  expressly  or   impliedly  cover   any  particular
procedural aspect, the inherent power can be used to
deal with such situation or aspect, if the ends of justice

warrant it. The breadth of such power is co­extensive
with the need to exercise such power on the facts and
circumstances.  
(c) A Court has no power to do that which is prohibited
by   law   or   the   Code,   by   purported   exercise   of   its
inherent   powers.   If   the   Code   contains   provisions
dealing   with   a   particular   topic   or   aspect,   and   such
provisions   either   expressly   or   necessary   implication
exhaust the  scope of  the  power of  the  court or the
jurisdiction   that   may   exercised   in   relation   to   that
matter, the inherent power cannot be invoked in order
to cut across the powers conferred by the Code or a
manner   inconsistent   with   such   provisions.   In   other
words   the   court   cannot   make   use   of   the   special
provisions   of   Section   151   of   the   Code,   where   the
remedy or procedure is provided in the Code. 
(d)   The   inherent   powers   of   the   court   being
complementary to the powers specifically conferred, a
court   is   free   to   exercise   them   for   the   purposes
mentioned in Section 151 of the Code when the matter
is not covered by any specific provision in the Code and
the exercise of those powers would not in any way be in
conflict with what has been expressly provided in the
Code or be against the intention of the Legislature. 
(e) While exercising the inherent power, the court will
be doubly cautious, as there is no legislative guidance
to deal with the procedural situation and the exercise of
power depends upon the discretion and wisdom of the
court, and the facts and circumstances of the case. The
absence of an express provision in the code and the
recognition and saving of the inherent power of a court,
should not however be treated as a carte blanche to
grant any relief. 
(f) The power under section 151 will have to be used
with   circumspection   and   care,   only   where   it   is
absolutely necessary, when there is no provision in the
Code governing the matter, when the bona fides of the
applicant cannot be doubted, when such exercise is to
meet the ends of justice and to prevent abuse of process
of court.
14 The amended provisions of the Code contemplate

and   expect   a   trial   court   to   hear   the   arguments
immediately after the completion of evidence  and then
proceed to judgment. Therefore, it was unnecessary to
have an express provision for re­opening the evidence
to examine a fresh witness or for recalling any witness
for   further   examination.   But   if   there   is   a   time   gap
between the completion of evidence and hearing of the
arguments,   for   whatsoever   reason,   and   if   in   that
interregnum,   a   party   comes   across   some   evidence
which   he   could   not   lay   his   hands   earlier,   or   some
evidence in regard to the conduct or action of the other
party comes into existence, the court may in exercise of
its   inherent   power   under   section   151   of   the   Code,
permit the production of such evidence if it is relevant
and necessary in the interest of justice, subject to such
terms as the court may deem fit to impose.
15  The  learned  counsel   for  respondent   contended
that once arguments are commenced, there could be no
re­opening of evidence or recalling of any witness. This
contention is raised by extending the convention that
once arguments are concluded and the case is reserved
for   judgment,   the   court   will   not   entertain   any
interlocutory   application   for   any   kind   of   relief.   The
need for the court to act in a manner to achieve the
ends of justice (subject to the need to comply with the
law)   does   not   end   when   arguments   are   heard   and
judgment is reserved. If there is abuse of the process of
the court, or if interests of justice require the court to
do something or take note of something, the discretion
to do those things does not disappear merely  because
the   arguments  are   heard,   either  fully   or   partly.  The
convention that no application should be entertained
once the trial or hearing is concluded and the case is
reserved   for   judgment   is   a   sound   rule,   but   not   a
straitjacket formula. There can always be exceptions in
exceptional   or   extra­ordinary   circumstances,   to   meet
the ends of justice and to prevent abuse of process of
court,   subject   to   the   limitation   recognized   with
reference to exercise of power under section 151 of the
Code.  Be that as it may. In this case, the applications
were made before the conclusion of the arguments. 

19  We may add a word of caution. The power under
section 151 or Order 18 Rule 17 of the Code is not
intended to be used routinely, merely for the asking. If
so   used,   it   will   defeat   the   very   purpose   of   various
amendments to the Code to expedite trials. But where
the application is found to be bonafide and where the
additional evidence, oral or documentary, will assist the
court   to   clarify   the   evidence   on   the   issues   and  will
assist in rendering justice, and the court is satisfied that
non­production   earlier   was   for   valid   and   sufficient
reasons, the court may exercise its discretion to recall
the witnesses or permit the fresh evidence. But if it
does  so,  it  should  ensure   that  the   process  does  not
become a protracting tactic. The court should firstly
award   appropriate   costs   to   the   other   party   to
compensate for the delay. Secondly the court should
take   up   and   complete   the   case   within   a   fixed   time
schedule so that the delay is avoided. Thirdly if the
application is found to be mischievous, or frivolous, or
to cover up negligence or lacunae, it should be rejected
with heavy costs.”
(Emphasis supplied)
The Apex court has therefore held that the need for the court to act in a
manner to achieve the ends of justice (subject ot the need to comply with the
law) does not end when arguments are heard and judgment is reserved. The
Apex court further held that if there is abuse of the process of the Court, or if
interests   of   justice   require   the   court   do   do   something   or   take   note   of
something, the discretion to do those things does not disappear merely because
the arguments are heard either fully or partly.  The Apex Court has crystallized
the proposition of law by observing that where the application is found to be
bonafide and where the additional evidence, oral or documentary, will assist
the court to clarify the evidence on the issues and will assist in rendering

justice, that the application is required to be allowed. The Apex Court therefore
held that the court is not powerless to consider the application for leading the
additional evidence filed by the Plaintiff but the same is circumscribed by the
tests   which   have   been   laid   down   by   the   Apex   Court.     The   paramount
consideration if one can say is that the same has to assist in rendering justice.
In the instant case, the suit being one for specific performance. The aspect of
readiness   and   willingness   assumes   importance   and   can   be   said   to   be   the
defining aspect in so far as the entitlement of the Plaintiff to the relief of
specific performance is concerned.  As indicated herein above, this is not a case
where for the first time the Plaintiff wants to produce the evidence in respect
of   its   readiness   and   willingness   without   there   being   any   pleadings.     The
pleadings are already there in place.  The parties are also aware as to in respect
of what matters they are litigating. However, in the affidavit in evidence that
was filed on behalf the Plaintiff, the evidence in that regard remained to be
incorporated.   It is required to be borne in mind that the Defendants have
conveyed other lands which they had agreed to sell to the Plaintiff except 4
plots of land covered by the 4 agreements of which the specific performance
has been sought.  The fact that the lands have been constructed upon and that
the  buildings are standing thereon since the early eighties cannot be lost sight
of. The Defendants would be obviously entitled to cross examine the Plaintiff's
witness in  respect of  the  additional  evidence.   For the  delay in  filing the
Application the Defendants can be compensated by way of costs. However, if

the application is not allowed then grave prejudice is likely to cause to the
Plaintiff having regard to the facts and circumstances which are prevailing in
the present case. The interest of justice therefore requires that the Plaintif be
given   an   opportunity   to   lead   evidence   in   respect   of   its   readiness   and
willingness. The Trial Court seems to have taken a highly technical view of the
matter and has rejected the application without taking into consideration the
aforesaid facts. In that view of the matter, the impugned order dated 2/8/2013
would have to be quashed and set aside and is accordingly quashed and set
aside. The Notice of Motion No.2461 of 2013 would accordingly stand allowed
and the following directions are issued :­
[1] The Plaintiff to file the additional affidavit of evidence only
in respect of the aspect of its readiness and willingness latest
by 17/03/2015  when  the  suit  in  question  is to  come  up
before the Trial Court.
[2] The   Defendants   would   be   entitled   to   cross   examine   the
Plaintiff's witness and lead rebuttal evidence if they so deem
it appropriate.
[3] The contentions of the parties on merits are kept open for
being agitated before the Trial Court at the hearing of the
suit.
[4] Allowing the instant Writ Petition should not be construed as

any expression of opinion on the merits of the suit. The suit
would   undoubtedly   be   tried   on   its   own   merits   and   in
accordance with law.
[5] In   the   facts   and   circumstances   of   the   present   case,   the
Plaintiff to pay costs of Rs.5000/­ to each set of Defendants
represented by the learned counsel Shri Ibrahim Merchant,
Shri Abdul Khatri and Shri V N Bodke.  The same to be done
on or before 17/03/2015.  
[6] The above Writ Petition is allowed to the aforesaid extent.
Rule is accordingly made absolute with parties to bear their
respective costs of the Petition.
[7] The learned counsel appearing on behalf of the Respondent
Nos.1(a)   to   1(c)   Shri   Merchant   seeks   stay   of   the   instant
order. In view of the fact that the Plaintiff has been granted
time up to 17/03/2015, the said prayer is rejected.
[R.M.SAVANT, J]

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