2012(3) ALL MR 401
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
F.M. REIS, J.
Mrs. Irene Barbosa Vs. Shri Francis Thomas Gonsalves & Ors.
Writ Petition No.808 of 2011
3rd February, 2012
Petitioner Counsel: Mrs. A. AGNI
Respondent Counsel: Mr. J. P. MULGAONKAR
Civil P.C. (1908), S.151 - Cross suits - Evidence recorded separately - Not open to allow petitioner to adopt cross-examination of defendant witness in earlier suit especially when he desires to be cross-examined.
In this case even though the two suits were cross suits filed between the Petitioner and the Respondents, there was no attempt made either by the Petitioner or the Respondent for consideration of suits. Apart from that, it is not in dispute that the evidence was recorded separately. The parties also did not chose to request the Court to take any common evidence. Once the evidence has been recorded separately in two different suits, it is not open to allow the Petitioner to adopt the cross examination in the earlier suit especially taking in consideration the fact that the Dw.1 desires to be cross examined. It is well settled that even assuming there are any admissions which are favourable to the Petitioner in the earlier cross examination, the party is always entitled to explain such admission. Apart from that, if there are any contradictions in the earlier proceedings, the Petitioner is always entitled to confront the witness in accordance with the provision of the Evidence Act. Considering that Dw.1 desires to be cross examined, it is not open to the Court to allow the petitioner to adopt the cross examination in another proceedings. It is well settled that the evidence in one suit cannot by itself be treated to be evidence in another proceedings.Considering that the suits have not been amalgamated, the question of invoking the powers under Section 151 of the Civil Procedure Code in the circumstances of this case would not arise. [Para 5]
Cases Cited:
Rajendra Prasad Gupta Vs. Prakash Chandra Mishra & Ors, 2011 ALL SCR 1560 =(2011) 2 SCC 705 [Para 3]
K. K. Velusamy Vs. N. Palanisamy, 2011(3) ALL MR 455 (S.C.) =(2011) 11 SCC 275 [Para 3]
JUDGMENT
JUDGMENT :- Heard Mrs. Agni, learned Counsel appearing for the Petitioner and Shri J. P. Mulgaonkar, learned Counsel appearing for the Respondent.
2. The above Petition challenges the Order dated 09.12.2011 passed by the learned Civil Judge, Junior Division, at Panaji, whereby an application filed by the Petitioner to adopt the cross examination of Dw.1 which was conducted in Regular Civil Suit No. 40/1999/B, came to be rejected.
3. Mrs. Agni, learned Counsel appearing for the Petitioner has assailed the impugned Order essentially on the ground that the learned Judge has gone on the wrong assumption that there were no provisions or power in law permitting the parties to adopt the cross examination which was carried out in another proceedings. Learned Counsel has taken me through the Judgments of the Apex Court reported in (2011) 2 S.C.C. 705 : [2011 ALL SCR 1560] in the case of Rajendra Prasad Gupta vs. Prakash Chandra Mishra & Ors., wherein it has been held therein that even assuming there are no specific powers under the Civil Procedure Code to allow a particular request, the Court can always exercise powers under Section 151 of the Civil Procedure Code and allow such requests. Learned Counsel further pointed out that the learned Judge has also gone on the wrong premise to the effect that the Petitioner wanted to adopt only part of the cross examination when, according to the learned Counsel, the whole cross examination in the earlier proceedings was sought to be adopted. It has also been contended by the learned Counsel appearing for the Petitioner that a lot of judicial time would be saved and there would be no duplication of evidence of the cross examination of Dw.1. The learned Counsel, as such, submits that there is a jurisdictional error committed by the learned Judge which requires interference of this Court under Article 227 of the Constitution of India. The learned Counsel has also relied upon the Judgment of the Apex Court reported in (2011) 11 S.C.C. 275 : [2011(3) ALL MR 455 (S.C.)] in the case of K. K. Velusamy vs. N. Palanisamy.
4. On the other hand, Shri Mulgaonkar, learned Counsel appearing for the Respondents has supported the impugned Order. Learned Counsel further pointed out that Dw.1 desires to proceed with the cross examination and, as such, it is not proper for the Petitioner to adopt the cross examination in the earlier proceedings in the present suit. Learned Counsel further pointed out that at the time when the earlier cross examination had taken place, Dw.1 was not in a position to answer any question in respect of some documents at the relevant times. Learned Counsel appearing for the Respondents has pointed out that there is no failure of justice in case the impugned Order is allowed to stand as, according to him, no prejudice shall be caused to the Petitioner as the learned Judge has permitted to proceed with the cross examination of Dw.1. As there is no failure of justice to the Petitioner, the question of invoking jurisdiction under Article 227 of the Constitution of India, would not arise.
5. Upon hearing the learned Counsel and on perusal of the record, I find that even though the two suits are cross suits filed between the Petitioner and the Respondents, there was no attempt made either by the Petitioner or the Respondent for consideration of suits. Apart from that, it is not in dispute that the evidence is recorded separately. The parties also did not chose to request the Court to take any common evidence. In case such exercise was taken, the question of considering the request of Mrs. Agni, learned Counsel appearing for the Petitioner, would be justified. Once the evidence has been recorded separately in two different suits, it is not open to allow the Petitioner to adopt the cross examination in the earlier suit especially taking in consideration the fact that the Dw.1 desires to be cross examined. It is well settled that even assuming there are any admissions which are favourable to the Petitioner in the earlier cross examination, the party is always entitled to explain such admission. Apart from that, if there are any contradictions in the earlier proceedings, the Petitioner is always entitled to confront the witness in accordance with the provision of the Evidence Act. Considering that Dw.1 desires to be cross examined, it is not open to the Court to allow the petitioner to adopt the cross examination in another proceedings. It is well settled that the evidence in one suit cannot by itself be treated to be evidence in another proceedings. Considering the said fact, Shri Mulgaonkar, learned Counsel appearing for the Respondent, is justified to contend that there is no failure of justice to the Petitioner in case the impugned Order is allowed to stand. The learned Judge was justified to disallow the Petitioner to adopt the cross examination in the facts of this case. Considering there is no jurisdictional error committed by the learned Judge which calls for any interference of this Court under Article 227 of the Constitution of India, the above Petition deserves no consideration. The Judgments of the Apex Court relied upon by the learned Counsel appearing for the Petitioner are not applicable to the facts of the case. Considering that the suits have not been amalgamated, the question of invoking the powers under Section 151 of the Civil Procedure Code in the circumstances of this case as set herein above would not arise.