Shalini Bajirao Sawant vs Rajesh Gopal Chawan on 26 October, 2018

[Cites 1, Cited by 7]

Bombay High Court

Shalini Bajirao Sawant vs Rajesh Gopal Chawan on 26 October, 2018

Bench: G.S. Patel

                                                                   P1-TS160-14.DOC




 Arun



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
        TESTAMENTARY AND INTESTATE JURISDICTION
               TESTAMENTARY SUIT NO. 160 OF 2014
                                        IN
           TESTAMENTARY PETITION NO. 877 OF 2014


 Shalini Bajirao Sawant                                                ...Plaintif
       Versus
 Rajesh Gopal Chawan                                                ...Defendant


 Mr MP Wamorkar, i/b Maravoor Wamorkar & Company, for the
      Plaintiff.
 Ms Armin Wandrewala, with Mr Chetan M, i/b Utangle &
      Company, for the Defendant.


                               CORAM:     G.S. PATEL, J
                               DATED:     26th October 2018
 PC:-


 1.

There is a grievance made by Mr Wamorkar for the Plaintif that after the Plaintif closed her case, and contrary to the order of 27th February 2018, the Defendant in Testamentary Suit No. 160 of 2014, has filed not his own Evidence Affidavit, but of its next witness Mr JK Shah. It is pointed out that on 27th February 2018, I said that if the Defendant wanted to examine Mr Shah he could do so after he had led his own evidence and not before. This was in the context of a submission made on that date for the issuance of a summons to this very Mr Shah.

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2. It seems that Mr Shah is more than 85 years old. Ms Wandrewala accepts that under Order XVIII Rule 3-A of the Code of Civil Procedure 1908 ("CPC"), the Defendant is required to lead his own evidence before that of any other witness. She, however, points out that this is not an inflexible rule. Indeed the Rule itself says that an exception may be made by a Court for reasons to be recorded.

3. She points out that the evidence so far recorded in cross- examination of the Plaintif itself shows that there were some dealings between the Plaintif's husband and Mr Shah, as also between the deceased and Mr Shah. There is evidence of a visit by the Plaintif's husband, Bajirao, to the office of Mr Shah. This, she says, is clearly relevant and has a bearing on the issues, and hence Mr Shah's testimony is essential. Her submission is that solely on account of his age and infirmity the evidence of Mr Shah should be permitted first. Indeed Ms Wandrewala says that Mr Shah's condition is so frail that he was unable to even come to her own chambers for a conference. She has instructions to state that the Defendant will lead his own evidence immediately thereafter and will not seek to lead the evidence of any other witness before his own evidence.

4. None of this was of course before me on 27th February 2018, when the submission was much more in the abstract and in quite a diferent context. I do not see any disadvantage to the Plaintif by allowing the evidence of Mr Shah first. On the other hand there is conceivably a very great disadvantage to the Defendant if Mr Shah's evidence is not taken while he is available. That evidence could Page 2 of 3 26th October 2018 ::: Uploaded on - 29/10/2018 ::: Downloaded on - 01/11/2018 23:32:24 ::: P1-TS160-14.DOC perhaps, though one does not wish for this, be lost to the Defendant if time is spent in the cross-examination of the Defendant and the evidence and cross-examination of Mr Shah is kept pending in the meantime.

5. In any case there is ample precedent to indicate that in situations such as this the evidence of a further witness can always be interposed even during the evidence of another witness. No Court, especially in a civil trial, can lose sight of the fact that these are after all only rules of procedure and therefore aids to justice. They are not to be applied so rigidly and so inflexibly as to cause disadvantage to any party before the Court. Most of all, they are not to be used so as to result in the exclusion or occlusion of evidence that is now available.

6. For these reasons, I will permit the Defendant to lead the evidence of Mr Shah first. However, this is on condition that the evidence of the Defendant will be lead immediately thereafter. To further ensure this I will require the Defendant to file his own Evidence Affidavit before the cross-examination of Mr Shah commences. That Evidence Affidavit is to be filed and served on or before 7th December 2018. I will list the Testamentary Suit for marking the Defendant's documents on 14th December 2018.

7. Any delay in affirmation of the Affidavit is condoned.

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