JUDGMENT 1. - Instant writ petition has been filed by the petitioner for quashing orders dated 11.4.2012 (Annex. 5) and dated 12.4.2012 (Annex. 7) passed by the Addl. District Judge, Barmer and it is prayed that applications dated 11.4.2012 and 12.4.2012 (Annex. 6) filed by the petitioners may be allowed and the petitioner may be permitted to cross-examine witness AW-1 Vikram Singh and other witnesses and participate in the trial. 2. As per facts of the case, respondent No. 1 filed election petition under Section 31 of the Rajasthan Municipalities Act, 2009 before the District Judge, Barmer, which was transferred to the Court of Addl. District Judge, Barmer, in which election for Ward No. 1 of Municipal Council, Banner was challenged. After issuing notice, the petitioner defendant filed his reply in the above election petition. After filing reply, issues were framed and petitioner filed application for amendment of issues. Said application filed for amendment of issues was dismissed by the trial Court vide order dated 15.2.2012. Against said order dated 15.2.2012, so also, earlier order dated 21.2.2011 whereby applications under Order 14 Rule 5, C.P.C., were dismissed, the petitioner filed S.B. Civil Writ Petition 3178/2012, before this Court in which notices have been issued. 3. The election petition is pending for cross-examination of witnesses of plaintiff-respondent but petitioner filed an application under Order 1 Rule 10, C.P.C., for adding other defeated candidate as party. The application so filed was dismissed with cost of Rs. 5,000/- by the trial Court on 20.3.2012 on the ground that it has been filed to delay the trial of election petition. 4. In the order, it was specifically directed that if cost of Rs. 5,000/- will not be deposited by the petitioner on or before 11.4.2012, then, the petitioner shall not be permitted to cross-examine the witnesses of plaintiff-respondent nor he will be permitted to participate in the suit proceedings. 5. The matter was fixed for hearing on 11.4.2012 for cross-examination upon affidavit of the witness of the plaintiff. On that date, again, an application was filed for granting time for cross-examination of the witness but, on that date, counsel for the petitioner Shri Sampat Bohra was out of town, therefore, time was sought on his behalf. However, learned trial Court fixed the matter after lunch. Subsequently, counsel for the petitioner appeared and prayed for adjournment for two months. On that date, again, an application was filed for granting time for cross-examination of the witness but, on that date, counsel for the petitioner Shri Sampat Bohra was out of town, therefore, time was sought on his behalf. However, learned trial Court fixed the matter after lunch. Subsequently, counsel for the petitioner appeared and prayed for adjournment for two months. The trial Court dismissed the application dated 11.4.2012 and observed that vide order dated 20.3.2012 last opportunity to cross-examine the witness was granted with direction to deposit cost of Rs. 5,000/- but the petitioner did not deposit the cost up to 11.4.2012, therefore, trial Court dismissed the application and further ordered to close the opportunity and held that the petitioner is not entitled to participate in the proceedings of the election petition and fixed the case on 12.4.2012. 6. On 12.4.2012, the petitioner again filed an application after depositing the cost and prayed to grant an opportunity to cross-examine the witness plaintiff Vikram Singh after providing copy of examination-in-chief. Learned trial Court dismissed the said application on the same day and did not permit the petitioner to cross-examine witness Vikram Singh and to participate in the trial on the ground that from last more than two years petitioner-defendant was taking time to cross-examine the witness. The petitioner-defendant has filed instant writ petition feeling aggrieved by orders Annex. 5 dated 11.4.2012 and Annex. 7 dated 12.4.2012 passed by the Addl. District Judge, Barmer in election petition. 7. Learned counsel for the petitioner submits that both the orders are totally illegal and arbitrary because the trial Court is proceeding in the matter with very haphazard and arbitrary' manner. The right to contest the present election is constitutional right of the petitioner and the said right cannot be curtailed by the trial Court, therefore, both the orders impugned may be quashed. 8. The right to contest the present election is constitutional right of the petitioner and the said right cannot be curtailed by the trial Court, therefore, both the orders impugned may be quashed. 8. Learned counsel for the petitioner submits that on 12.4.2012 the petitioner deposited the cost as directed by the Court on 20.3.2012 but the trial Court did not consider the said aspect of the matter although the Government Counsel was permitted to cross-examine the witness AW-1 Vikram Singh but did not allow the petitioner to cross-examine the said witness on the same day therefore impugned which is against the principle of natural justice may be quashed and trial Court may be directed to grant one opportunity to cross-examine the witness AW-1 Vikram Singh. 9. After hearing learned counsel for the petitioner, I have perused the entire documents filed along with writ petition. 10. Admittedly, the election petition was filed on 22.12.2009. In the petition, issues were framed on 11.5.2010 and even after filing affidavits the witnesses were not cross-examined till 20.3.2012 and petitioner filed application under Order 1 Rule 10, C.P.C., for impleading other defeated candidates as party. Learned trial Court observed in the order that for last two years repeatedly the petitioner-defendant is taking time to cross-examine the witness of the plaintiff only to delay the proceedings. Following order was passed on 20.3.2012 whereby last opportunity was given to cross-examine the witness after depositing cost of Rs. 5.000/-. Learned trial Court observed in the order that for last two years repeatedly the petitioner-defendant is taking time to cross-examine the witness of the plaintiff only to delay the proceedings. Following order was passed on 20.3.2012 whereby last opportunity was given to cross-examine the witness after depositing cost of Rs. 5.000/-. i=koyh ds voyksdu ls ;g Hkh ik;k tkrk gS fd fnukad 26-5-2010 dks izkFkhZ dk lk{; esa 'kiFki= is'k gksus ds ckn yxHkx 2 o"kksZa ls mlls ftjg ugha dh tk jgh gS vkSj dkQh le; ls izkFkhZ dh ftjg esa py jgk gSA ckj&ckj vyx&vyx izkFkZuk i= is'k fd;s tk jgs gSA fnukad 5-7-2011 dks Hkh izkFkhZ mifLFkr FkkA ftjg gsrq ekSdk fn;k x;k FkkA fnukad 30-7-2011 dks Hkh izkFkhZ mifLFkr Fkk] ijUrq ftjg ugha djus lks vafre ekSdk fn;k x;k vkSj vkxkeh is'kh fnukad 12-8-2011 dks izkFkZuk i= varxZr vkns'k 6 fu;e 17 lifBr /kkjk 151 lh0ih0lh0 dk is'k dk dj fn;k x;k ml fnu Hkh lk{; esa izkFkhZ mifLFkr FkkA tcfd izdj.k esa ekuuh; jktLFkku mPp U;k;ky; }kjk ,l0ch0 flfoy fjV ihfV'ku uEcj 5314@2011 ds vkns'k esa ;g izdj.k pquko ;kfpdk gksus ls 'kh?kz V~k;y djus o vuko';d foyEc dks jksdus ds fy;s mfpr vkns'k ikfjr djus ds fy, funsZ'k Hkh fn;s x;s FksA fnukad 5-9-2011 dks 3]000 dh dksLV ds lkFk izkFkZuk i= vUrxZr vkns'k 6 fu;e 17 lifBr /kkjk 151 lh0lh0lh0 dk [kkfjt fd;k x;k Fkk vkSj vkbZank is'kh fnukad 20-9-2011 dks izkFkhZ ls ftjg gsrq lqcg 11 cts dk le; fu;r dj j[kh xbZ FkhA rFkk fnukad 20-9-2011 dks fu;r le; ij izkFkhZ o mlds vf/koDrk mifLFkr vk x;sA ysfdu e/;kUg% i'pkr~ foizkFkhZ la[;k 1 ds vf/koDrk mifLFkr vk;s vkSj fQj ls ftjg gsrq ekSdk ekaxus ij U;k;ky; }kjk fQj ls lqcg 11 cts dk le; r; dj fnukad 29-9-2011 dks lqcg 11 cts izkFkhZ e; vf/koDrk fu;r le; ij mifLFkr vk;k Fkk ijUrq fQj ls foizkFkhZ la[;k 1 ds vf/koDrk mifLFkr ugha vk;s vkSj le; 12-45 ih0,e0 ij mifLFkr gksdj ,d izkFkZuk i= vUrxZr vkns'k 47 fu;e 1 lh0ih0lh0 dk is'k dj fn;k vkSj bldh cgl dks Hkh ekSdk ysrs jgs rFkk fnukad 21-10-2011 dks vkns'k 47 fu;e 1 lh0ih0lh0 dk izkFkZuk i= [kkfjt fd;k x;k Fkk vkSj fQj ls izkFkhZ ls ftjg gsrq izdj.k fu;r fd;k x;k vkSj fnukad 11-11-2011 dks izkFkhZ ftjg gsrq gkftj Fkk ml fnu Hkh ,d izkFkZuk i= vUrxZr vkns'k 8 fu;e 1d ( 3 ) lifBr /kkjk 151 lh0ih0lh0 dk foizkFkhZ la[;k 1 dh vksj ls is'k fd;k x;k Fkk ftldk Hkh fuLrkj.k djus ds ckn fnukad 17-1-2012 dks izkFkhZ ftjg gsrq mifLFkr Fkk ml fnu foizkFkhZ la[;k 1 dh vksj ls u;s vf/koDrk }kjk odkyrukek is'k djus ls fQj ls mUgsa fgnk;r nsrs gq, ftjg dk ekSdk fn;k x;k Fkk vkSj vkxkeh is'kh fnukad 7-2-2012 dks Hkh foizkFkhZ la[;k 1 dh vksj ls rudhgkr esa la'kks/ku dk izkFkZuk i= is'k dj fn;k x;k FkkA tcfd izdj.k esa iwoZ esa Hkh vkns'k 14 fu;e 5 lh0ih0lh0 dk izkFkZuk i= is'k gksus ls fnukad 21-2-2011 dks foLr`r dkj.k crykrs gq, [kkfjt fd;k x;k Fkk vkSj ;g izkFkZuk i= Hkh fnukad 15-2-2012 ds vkns'k ls [kkfjt djrs gq, foizkFkhZ vuko';d :i ls izkFkZuk i= is'k u djsa] vkSj vkbZank ftjg gsrq fnukad 3-3-2012 dks lqcg 11 cts dk le; fu;r fd;k x;k Fkk vkSj fQj fnukad 3-3-2012 dks foizkFkhZ la[;k 1 dh vksj ls i{kdkj cuk;s tkus ckcr~ izkFkZuk i= is'k dj fn;k x;kA bl izdkj blls Li"V gksrk gS fd foizkFkhZ la[;k 1 dh vksj ls izdj.k esa vuko';d :i ls foyEc fd;k tk jgk gSA ftlls fd bl pquko ;kfpdk ds fuLrkj.k esa foyEc gksrk jgsA mDr fLFkfr dks ns[krs gq, U;k;ky; eqd n'kZd ugha jg ldrhA lkFk gh vuko';d izkFkZuk i= is'k djus dh otg ls U;k;ky; ds le; dk nq:i;ksx Hkh gksrk gSA ,slh fLFkfr esa fo'ks"k dksLV yxkuk Hkh t:jh gksrk gS rkfd blls lcd ysaA bl laca/k esa ekuuh; mPp U;k;ky; ds U;kf;d n`"VkUr euksgjflag cuke~ Mh0,l0 'kekZ vkSj vU;] 2009 ( 3 ) Mh0,u0ts0 ( ,l0lh0 ) 1122] ds ekeys esa Hkh /kkjk 35 ch0lh0ih0lh0 dh O;k[;k dh gS] ftlesa oknh }kjk volj nsus ds ckn Hkh dksLV dh vnk;xh ugha djus ls okn dks [kkfjt dj fn;k x;k FkkA bl fLFkfr dks Li"V djrs gq;s ekuuh; mPpre U;k;ky; us ;g izfrikfnr fd;k fd tgka dksLV dh vnk;xh ugha dh tkrh gS ogka okn [kkfjt ugha fd;k tk ldrk ysfdu xokg ls izfrijh{kk can dh tk ldrh gS ;k izdj.k dh vkxkeh dk;Zokgh esa fgLlk ysus ls Hkh jksdk tk ldrk gSA tSlk fd bl U;k;kf;d n`"Vkar esa Li"V fd;k x;k gS fd Plaintiff failed to deposit the cost inspite of giving several opportunities - Suit dismissed for failure to pay cost - Contention that Court cannot dismiss the suit however he can only stop further prosecution of the suit - Court has discretion to extend the period for such payment of filing an application under Section 148 but only in exceptional circumstances - Suit cannot be dismissed for non-payment of cost but it results in forfeiture of the right defence - Court can close the cross-examination of the witness and prohibit the further prosecution of the suit or defence - Held, Judgments are set aside and restore the suit conditionally. " bl izdkj bl U;kf;d n`"Vkar ls lger gksrs gq, vfHkys[k dh mDr rF; ,oa ifjfLFkfr;ksa esa foizkFkhZ la[;k 1 o ckdkjke dh vksj ls i{kdkj cuk;s tkus ckcr~ izLrqr fd;s x;s nksuksa gh izkFkZuk i= 5&5 gtkj :i;s dh dksLV ds lkFk [kkfjt fd;s tkrs gSA ckdkjke dh vksj ls dksLV dh vnk;xh ugha fd;s tkus ij izkFkhZ fu;ekuqlkj tfj;s btjk; olwy dj ldsxk] tcfd foizkFkhZ la[;k 1 dh vksj ls mDr dksLV jkf'k dh vnk;xh ugha djus ij og izkFkhZ ls vkxkeh is'kh ij u rks ftjg dj ldsxk vkSj u gh izdj.k dh vfxze dk;Zokgh esa fgLlk ys ldsxk vkSj dksLV dh vnk;xh gsrq vkbZank dksbZ volj ugha fn;k tk;sxkA foizkFkhZ la[;k 1 ds ;ksX; vf/koDrk us ,d leqfpr volj fn;s tkus dk fuosnu fd;k] pwafd izdj.k dk ;Fkk lEHko 'kh?kz fuLrkj.k fd;k tkrk gSA vr% ,d mfpr volj le;kof/k dk nsrs gq, vkbZank izdj.k esa dksLV dh vnk;xh o izkFkhZ ls ftjg djus gsrq rkjh[k is'kh fnukad 11-4-2012 dks le; 11 ,0,e0 fu;r dh tkrh gSA vkns'k lquk x;kA " 11. Upon perusal of the above order, it is revealed that after considering all aspects of the matter, again, on 20.3.2012 last opportunity was granted by the trial Court to the petitioner to cross-examine the witness after depositing cost of Rs. 5,000/- while rejecting application filed under Order 1 Rule 10, C.P.C. It was made clear that if the cost will not be deposited on or before next date of heating, then, he will not be permitted to cross-examine the witnesses nor to participate in the proceedings. On 11.4.2012, the matter was fixed at 11 A.M. On that date, without depositing the amount of cost, again, the petitioner-defendant filed an application to adjourn the case for two months for cross-examination of the witnesses on the ground that writ petition is pending before the High Court against order of denial of amendment in the issues. The application filed by the petitioner-defendant on 11.4.2012 was dismissed on the ground that he has not complied with the order dated 20.3.2012 and, again, only to delay the matter the instant application has been filed. 12. The matter was fixed on 12.4.2012 for deciding application filed by the Government Counsel. The application filed by the petitioner-defendant on 11.4.2012 was dismissed on the ground that he has not complied with the order dated 20.3.2012 and, again, only to delay the matter the instant application has been filed. 12. The matter was fixed on 12.4.2012 for deciding application filed by the Government Counsel. On 12.4.2012, after hearing the parties, the trial Court rejected the application while observing that no compliance of order dated 20.3.2012 has been made by the petitioner-defendant within time and, upon request made by the petitioner-defendant, fixed the case on 9.5.2012 while granting time to challenge the order. 13. From all the above facts, it is abundantly clear that election petition was filed by the plaintiff-respondent in the year 2009 and somehow only for the purpose of cross-examination it remained pending for two years. Thereafter, on 20.3.2012, opportunity was granted to the petitioner to cross-examine the witness while rejecting application for impleading defeated candidate as party Sled by the petitioner on cost of Rs. 5,000/-; but, instead of complying with the directions given on 20.3.2012, again, an application was filed to adjourn the matter for two months. 14. Learned trial Court after taking into consideration entire facts of the case rejected the application on the ground that neither cost has been deposited nor me defendant is prepared to cross-examine the witness and, again, making prayer for adjournment which is not proper. In my opinion, impugned order dated 11.4.2012 has been passed by the trial Court after taking into consideration the conduct of the petitioner and held that only to delay the matter by raising grounds one after another, therefore, it is not proper to accept the prayer for adjournment. 15. It is also worthwhile to observe that application filed by the petitioner on 12.4.2012 after depositing amount of Rs. 5,000/- as cost was dismissed on the ground that the petitioner did not comply with the directions issued by the Court on or before 20.3.2012. The trial Court further granted time to challenge the impugned order before this Court and list the matter on 9.5.2012. It is very strange that the petitioner has filed the instant writ petition on 8.5.2012 knowing it well that the election petition is fixed for 9.5.2012. The trial Court further granted time to challenge the impugned order before this Court and list the matter on 9.5.2012. It is very strange that the petitioner has filed the instant writ petition on 8.5.2012 knowing it well that the election petition is fixed for 9.5.2012. It is, therefore, abundantly dear that inspite of ample opportunity granted to the petitioner by the trial Court :he petitioner has adopted tactics to delay the matter and inspite of granting opportunity one after another by the trial Court for more than two years the petitioner has not cross-examined the witness. In my considered opinion, in view of the judgment of the Hon'ble Supreme Court in the case of Shalini Shyam Shetty reported in (2010) 8 SCC 329 , such type of conduct of the petitioner disentitles him from invoking the jurisdiction of this Court under Article 227 of the Constitution of India to quash the order impugned which is justified in all respects. Therefore, I see no reason to interfere in the instant matter.Accordingly, this writ petition is dismissed.Petition dismissed. *******