Saturday, 20 August 2016

Whether witness can be permitted to withdraw admission given in cross examination by filing additional examination in chief?

On hearing the learned counsel for the parties and on perusal of
the pleadings, the affidavit previously filed and the affidavit which is sought
to be filed, it appears that the trial court committed a glaring mistake in partly
allowing the application filed by the respondent no. 1 and permitting the
respondent no. 1 to resile from the clear and categorical statement made in
the   affdidavit   of   the   officer   of   the   respondent   no.1.     The   officer   of   the
respondent no. 1, in para 6 of the affidavit, had stated thus ­­
6. That Shri Suresh Dhawale, the plaintiff was earlier
engaged in the business of agricultural equipments. Later
on   he   started   seeds   business.   On   many   occasions   he
expressed   his   desire   to   have   a   distributorship   of   the
defendant company. But as the plaintiff was new to the
seed business and as the distributor of the defendant was
already at Akola, no distributorship was and could be given
to the plaintiff.
It appears on a reading of para 6 that it was categorically stated
by the officer in his evidence that the petitioner was previously engaged in
agricultural business, though he later on started the seeds business and on
many occasions he had expressed his desire to have distributorship of the
defendant company. It is also clear from para 6 of the affidavit that the
respondent no.1 did not give and was not able to give the distributorship to
the   petitioner   as   the   petitioner   was   new   in   the   seed   business   and   the

respondent no. 1 already had a distributor at Akola.  This is not a case where
a word ‘not’ is omitted due to a typographical mistake.  There were clear and
categorical   statements   made   by   the   witness   in   his   affidavit.   By   filing   an
additional affidavit, the officer of the respondent no. 1 wanted to state that it
was not correct to say that on many occasions, the petitioner had expressed
his desire to have a distributorship of the defendant company.  Para 6 of the
previously   filed   affidavit   clearly   states   the   reason   for   not   granting   the
distributorship to the petitioner.  The statements in para 6 did not contain any
typographical mistake.  The statements in the entire paragraph were not only
grammatically correct  but the statements  were also clear and  categorical.
There was no question of occurrence of a typographical error in para 6 of the
originally   filed   affidavit.   By   permitting   the   respondent   no.1   to   file   an
additional   affidavit,   the   trial   court   literally   permitted   the   witness   of   the
respondent no. 1 to resile from a categorical statement made by him in para 6
of the affidavit. The witness could not have been permitted to withdraw his
clear and categorical statements in his affidavit.   It cannot be said that the
trial court was justified in allowing the application merely because it was
denied by the respondent no. 1 in the written statement that the petitioner
had   approached   the   respondent   no.   1   for   distributorship.     The   judgment
reported   in     1997   A.I.H.C.   3187     and   relied   on   by   the   counsel   for   the
respondent   no.   1   is   inapplicable   to   the   facts   of   this   case.     In   fact,   the
judgments reported in AIR 20009 S.C. 1604  and 1999 (Supp.) Bom.C.R. 81
and relied on by the counsel for the petitioner have a bearing on the issues

involved in this case and support the case of the petitioner. 
For the reasons aforesaid, the writ petition is partly allowed.  The
impugned order dated 14.3.2012   is quashed and set aside and it is hereby
ordered that the respondent no. 1   cannot be permitted to state the facts
stated  in paras 2 & 3 of the Additional affidavit  at Exh. 101.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Writ Petition No. 3853 of 2012
Suresh Uttamrao Dhawale,

                    ­Versus­ 
M/s Ankur Seeds Private Ltd. 

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM  : SMT. VASANTI A. NAIK, J.
 DATE     :   1st November, 2012.



By this petition, the petitioner  impugns an order passed by the
trial   court   on   14.3.2012,   partly   allowing   an   application   filed   by   the
respondent   no.1   and   holding   that   instead   of   correcting   his   evidence   in

examination in chief, the respondent no. 1 is permitted to file additional
evidence on record. 
The petitioner   is the original plaintiff. A suit was filed by the
plaintiff against the respondent no.1 company for recovery of the amount
paid by the petitioner to the respondent no.1 for securing the distributorship
of the respondent no.1. The respondent no. 1 filed a written statement and
denied the claim of the petitioner.  Issues were framed and the parties were
permitted to tender the evidence. The petitioner tendered the evidence of the
petitioner and his witnesses and closed his side.  On 15.3.2011, the officer of
the respondent no.1 tendered his evidence in examination in chief on affidavit
.  On 18.6.2011, the officer of the respondent no.1 admitted the contents of
the   statements   in   the   affidavit   in   the   examination   in   chief.   The   crossexamination
of the officer was conducted on 2.7.2011. Thereafter, when the
officer was in the witness box and was to be cross­examined, the matter was
adjourned   on   16.7.2011,   5.8.2011   and   12.8.2011   on   the   request   of   the
respondent no.1.  On 3.9.2011, the respondent no. 1 filed an application for
production of authorization letter and also filed an application for permission
to recall the officer for taking further examination in chief. It was stated in the
application   that   there   was   some   mistake   committed   while   presenting   the
evidence on affidavit  and the respondent no. 1 wanted to cure the mistake.  
It was stated in the affidavit filed by the officer of the respondent
no.1 that the plaintiff­petitioner had on many occasions expressed his desire
to   have   a   distributorship   of   the   respondent   no.1   company   but   since   the

petitioner was new to the seed business and since there was a distributor of
the respondent no. 1 at Akola, no distributorship was given and could be
given to the petitioner­plaintiff. By making the application, the respondent no.
1 wanted to resile from the said admission and wanted to tender a fresh
affidavit stating therein that it was not correct to say that on many occasions
the plaintiff expressed his desire to have a distributorship of the defendant
company. The application was strongly opposed by the petitioner.  However,
the trial court, by the impugned order dated 14.3.2012 partly allowed the
application and permitted the respondent no. 1 to file the additional affidavit
to clarify  the facts stated in the previous affidavit. 
Shri Mohta, the leaned counsel for the petitioner, submitted that
the trial court committed a serious error in partly allowing the application
filed by the respondent no.1.  By the said application, according to the learned
counsel, the respondent no. 1 wanted to resile from a categorical admission
made by the respondent no.1 about the petitioner expressing his desire to
have a distributorship of the respondent no.1 company and the respondent
no. 1   expressing its inability to give the distributorship to the petitioner as
there was a distributor of the respondent no.1 at Akola and the petitioner was
new in the seed business.  The learned counsel submitted that in clear and
categorical terms the officer had narrated the aforesaid facts in the affidavit
initially filed and the officer could not have been permitted to file another
affidavit and deny all that was stated in para 6 of the previously filed affidavit.
The learned counsel relied on the judgments reported in AIR 2009 SC 1604

and 1999 (Supplement) Bom. C. R. 81, to substantiate his submission that
neither can a witness be recalled for giving further evidence in regard to the
facts mentioned in the affidavit nor can a witness be permitted to tender an
additional   affidavit   to   clearly   the   facts   stated   in   the   previous   affidavit.
According to the learned counsel, the case in hand is on a much higher
pedestal than the cases decided by this court and the Hon’ble Supreme Court
as by producing an additional affidavit of the officer, the respondent no.1
company wanted to resile from the clear and categorical statement made by
the officer in the previously filed affidavit. 
Shri   Bhoot,   the   learned   counsel   for   the   respondent   no.1,
supported the order passed by the trial court and submitted that there was a
typographical   error   in   the   original   affidavit   filed   by   the   witness   of   the
respondent no.1 and hence the trial court rightly permitted the respondent
no.1 to file an additional affidavit of the said witness.  It is submitted that in
the written statement the respondent no.1 had specifically denied that the
petitioner had approached the respondent no.1 for grant of distributorship
and in view of those pleadings, the trial court was justified in partly allowing
the application filed by the respondent no.1.  The learned counsel submitted
that   a  supplementary   affidavit   could   be   filed   for   deleting   a  portion   in   a
previously filed affidavit. The learned counsel relied on the judgment reported
in 1997 A.I.H.C. 3187 to substantiate his submission. 
Shri Thakre, the leaned Assistant Govt. Pleader appearing for the
respondent no. 2 supported the order passed by the trial court and submitted

that in the facts and circumstances of the case, the trial court was justified in
partly allowing the application. 
On hearing the learned counsel for the parties and on perusal of
the pleadings, the affidavit previously filed and the affidavit which is sought
to be filed, it appears that the trial court committed a glaring mistake in partly
allowing the application filed by the respondent no. 1 and permitting the
respondent no. 1 to resile from the clear and categorical statement made in
the   affdidavit   of   the   officer   of   the   respondent   no.1.     The   officer   of   the
respondent no. 1, in para 6 of the affidavit, had stated thus ­­
6. That Shri Suresh Dhawale, the plaintiff was earlier
engaged in the business of agricultural equipments. Later
on   he   started   seeds   business.   On   many   occasions   he
expressed   his   desire   to   have   a   distributorship   of   the
defendant company. But as the plaintiff was new to the
seed business and as the distributor of the defendant was
already at Akola, no distributorship was and could be given
to the plaintiff.
It appears on a reading of para 6 that it was categorically stated
by the officer in his evidence that the petitioner was previously engaged in
agricultural business, though he later on started the seeds business and on
many occasions he had expressed his desire to have distributorship of the
defendant company. It is also clear from para 6 of the affidavit that the
respondent no.1 did not give and was not able to give the distributorship to
the   petitioner   as   the   petitioner   was   new   in   the   seed   business   and   the

respondent no. 1 already had a distributor at Akola.  This is not a case where
a word ‘not’ is omitted due to a typographical mistake.  There were clear and
categorical   statements   made   by   the   witness   in   his   affidavit.   By   filing   an
additional affidavit, the officer of the respondent no. 1 wanted to state that it
was not correct to say that on many occasions, the petitioner had expressed
his desire to have a distributorship of the defendant company.  Para 6 of the
previously   filed   affidavit   clearly   states   the   reason   for   not   granting   the
distributorship to the petitioner.  The statements in para 6 did not contain any
typographical mistake.  The statements in the entire paragraph were not only
grammatically correct  but the statements  were also clear and  categorical.
There was no question of occurrence of a typographical error in para 6 of the
originally   filed   affidavit.   By   permitting   the   respondent   no.1   to   file   an
additional   affidavit,   the   trial   court   literally   permitted   the   witness   of   the
respondent no. 1 to resile from a categorical statement made by him in para 6
of the affidavit. The witness could not have been permitted to withdraw his
clear and categorical statements in his affidavit.   It cannot be said that the
trial court was justified in allowing the application merely because it was
denied by the respondent no. 1 in the written statement that the petitioner
had   approached   the   respondent   no.   1   for   distributorship.     The   judgment
reported   in     1997   A.I.H.C.   3187     and   relied   on   by   the   counsel   for   the
respondent   no.   1   is   inapplicable   to   the   facts   of   this   case.     In   fact,   the
judgments reported in AIR 20009 S.C. 1604  and 1999 (Supp.) Bom.C.R. 81
and relied on by the counsel for the petitioner have a bearing on the issues

involved in this case and support the case of the petitioner. 
For the reasons aforesaid, the writ petition is partly allowed.  The
impugned order dated 14.3.2012   is quashed and set aside and it is hereby
ordered that the respondent no. 1   cannot be permitted to state the facts
stated  in paras 2 & 3 of the Additional affidavit  at Exh. 101.  
Rule is made absolute in the aforesaid terms with   order as to
costs.
      
Print Page

No comments:

Post a Comment