Whether court can permit further examination of witness after his cross-examination?

Perusal of the evidence of the concerned photographer indicates that he

had clearly deposed that he had brought the memory card as well as compact disk

with him in Court. The trial Court however marked the photographs as Articles as

there was no certificate in terms of Section 65 B (4) of the said Act. It is seen that

on the same day, the plaintiff moved the application at Exhibit 104. The trial Court

ought to have allowed that application in the light of the examination-in-chief of the

photographer in which he had stated that he had brought the memory card and the

compact disk in Court. There is no question of wiping out any admission in the

cross-examination in the light of the fact that the photographs had been marked as

Articles. Moreover, the deposition of the said photographer as a whole would have

to be considered so that the aspect of wiping out admission if any is taken care of.

The trial Court was therefore not justified in rejecting the said application.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 4298/2019

Vasant Janrao Gaoner Vs  Rajkanya  Manikrao Ughade

CORAM : A.S.CHANDURKAR, J.

DATED : 24.09.2019

Print Page

Whether the court can permit the witness to withdraw admission given in cross-examination by filing an additional affidavit of 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 Vs  M/s Ankur Seeds Private Ltd. 

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

Print Page

Whether court is precluded from recording further examination in chief of witness in view of Amended C.P.C.?

The Counsel for the Defendants, would, however, argue that in the examination-in-chief, the Plaintiff has made no mention about the fact as to who had signed the said document and whether it was signed in his presence or that he was in a position to identify the signature appearing on the said document. According to the Defendants, this evidence ought to have come in the affidavit in lieu of examination-in-chief as is required to be filed in terms of Order XVIII Rule 4 of the C.P.C. It was argued that although the Plaintiff later on entered the witness box and his further examination-in-chief has been recorded by the Court, in which all necessary details are mentioned in relation to the suit Bill of Exchange, that evidence cannot be looked into. This argument deserves to be merely stated to be rejected. There is nothing in the amended C.P.C. which precludes the Court from recording further examination-in-chief of the Plaintiff.

Bombay High Court

Rajesh Varma vs Aminex Holdings And Investments, ... on 10 January, 2008

Equivalent citations: 2008 (2) BomCR 588,

2008(3) MHLJ 460

A.M. Khanwilkar, J.

Print Page