Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1538 (MP)

Ghan Shyam Das v. Chhotelal (D) through LRs

2014-11-26

SUJOY PAUL

body2014
ORDER 1. This petition filed under Article 227 of the Constitution is directed against the order (Annexure P-3) whereby petitioner's application seeking permission to cross-examine the plaintiff is disallowed by the Court below. 2. In a suit filed by the plaintiff, the petitioner/defendant No.1 entered appearance and filed his written statement. The matter was fixed for plaintiff's evidence on 12.1.2000. The plaintiff's examination in chief was over in the first half of the day. The petitioner counsel before the Court below stated that he has to attend a matter before the High Court and he will come back for cross-examination after lunch hours. The matter was taken up after lunch. The petitioner did not appear and, therefore, the Court below closed the right of crossexamination of plaintiff. Against this, application under section 151 CPC dated 13.1.2000 (Annexure P-2) was filed. This application was disallowed by the Court below on the ground that there is no power under the CPC to recall the order which has already been passed. Against this order, present petition is filed. 3. Shri Vikas Singhal, Advocate for the petitioner, submits that on 12.1.2000 the suit was for the first time fixed for plaintiff's evidence. On the first date, petitioner's right to cross-examine the plaintiff was closed which is improper and Court below should have allowed application Annexure P-3. 4. Shri A.K. Jain and Shri Nitin Agrawal, Advocate for the other side submits that during the pendency of the petition, the plaintiff has already died. However, they have no objection if this Court comes to the conclusion that the Court below has erred in closing the right of the plaintiff. So far other witnesses whose statements are already recorded be not disturbed. 5. I have heard learned counsel for the parties and perused the record. 6. Record shows that on the very first date the petitioners right of cross-examination was closed. Petitioner has assigned plausible and justifiable reason for absence which prevented him to cross-examine the plaintiff. In the opinion of this Court, the Court below should have allowed his application Annexure P-2 and should have granted at least one opportunity to cross-examine the plaintiff. In this view of the matter, Annexure P-3 is set aside. It is held that Court below has erred in closing the right of the petitioner to cross-examine the plaintiff. To this extent, the order of Court below is interfered with. In this view of the matter, Annexure P-3 is set aside. It is held that Court below has erred in closing the right of the petitioner to cross-examine the plaintiff. To this extent, the order of Court below is interfered with. It is made clear that this order will have no adverse impact whatsoever on the other evidence which have already been recorded. 7. Petition is allowed to the extent indicated above. No costs. Vikas Singhal for petitioner; Nitin Agrawal with A. K. Agrawal for respondent No.1; A. K. Jain for respondent No.2.