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2016 DIGILAW 212 (RAJ)

Ram Gopal v. Sampat Lal Daga

2016-02-04

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against dismissal of the application filed by the petitioner under Order 18, Rule 17 read with Section 151 CPC. 2. The respondents-landlord had filed the suit for eviction and for award of mesne profit against the petitioner. When the plaintiff's witness PW-1 Jeth Mal appeared in the witness-box for cross-examination on 9.12.2015 and was being subjected to cross-examination by the counsel Mr. Mohan Lal Soni, the cross-examination instead of being directed towards the substance of the suit was deliberately done pertaining to the ownership of the suit property. 3. The Presiding Officer of the trial court on more than one occasion during the course of cross-examination, disallowed the question put in cross-examination and specifically directed the counsel not to ask questions regarding the ownership of the suit property. When on the third occasion, the counsel persisted in asking similar questions, and the court refused to permit such question, the counsel submitted as under:- **eSa LokfeRo ckcr iz'u vo'; iwNqaxk] ;fn vki vuqefr ugha nks rks esjh ftjg cUn dj nh tkosA** 4. On the said submissions made by the counsel, the court closed the cross-examination. 5. Where after the present application was filed seeking recall of the witness. The application was presented by another counsel Mr. Ramlal Nayak and contained the events of 9.12.2015 and claimed that the cross-examination remained incomplete and if the petitioner was not granted permission to complete the cross-examination, he would suffer and, therefore, the witness DW-1 be recalled. 6. The trial court after hearing the counsel for the parties, which hearing was attended by advocate Mr. Mohan Lal Soni also, dismissed the application indicating nine reasons. 7. The court primarily came to the conclusion that there is no dispute about the landlord tenant relationship between the parties; the only dispute remains regarding validity of notice under Section 106 of the Transfer of Property Act, 1882; the evidence was closed as the counsel did not ask a single question pertaining to the validity of the notice and was simply asking questions on the ownership of the suit property and provisions of Order 18, Rule 17 CPC cannot be utilised for the purpose of filling the lacuna. 8. 8. Learned counsel for the petitioner submits that the petitioner has essentially no defence in so far as the conduct of the counsel in conducting the cross-examination is concerned. However, a look at the cross-examination held so far would indicate that in presence of such cross-examination, the defence of the petitioner would be highly prejudiced and, therefore, the petitioner may be granted one opportunity to cross-examine the witness. 9. Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioner. It was submitted that the type of cross-examination which was under taken and the nature of the submissions which were made before the trial court, the trial court were justified in closing the cross-examination and rejecting the application and, therefore, the petition deserves to be dismissed. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. In so far as, the order dated 22.1.2016 passed by the trial court is concerned, the said order is perfectly justified in the circumstances of the case, where a counsel despite repeated directions of the Presiding Officer for not conducting unnecessary cross-examination had persisted with the same and has chosen to challenge the authority of the court, in case he was not permitted to go ahead with his unnecessary cross-examination. The conduct of the counsel in persisting with the said cross-examination and then challenging the authority of the court cannot be encouraged and/or supported. 12. However, a look at the cross-examination as produced by the learned counsel for the petitioner reveals that the counsel merely indulged in unnecessary cross-examination and had not asked a single question which had any bearing on the subject matter of the suit. Such conduct of the counsel would though not harm the counsel himself but would prejudice the case of the defendant-petitioner and, therefore, in those circumstances, ignoring the conduct of the counsel the application filed by the petitioner should have been accepted by the court by taking a party centric view instead of a lawyer centric view. 13. However, the action of the counsel cannot be totally ignored and, therefore, it would be required of the petitioner to pay a cost of L 5,000/- to the plaintiff for recalling the witness PW-1 Jeth Mal for further cross-examination. The said payment of cost would be pre-requisite for his conducting the further cross-examination. 13. However, the action of the counsel cannot be totally ignored and, therefore, it would be required of the petitioner to pay a cost of L 5,000/- to the plaintiff for recalling the witness PW-1 Jeth Mal for further cross-examination. The said payment of cost would be pre-requisite for his conducting the further cross-examination. 14. In view of above discussion, the writ petition filed by the petitioner is partly allowed. The order dated 20.1.2016 passed by the trial court is set aside and the application filed by the petitioner under Order 18, Rule 17 CPC is allowed. The witness PW-1 Jeth Mal would appear before the trial court on 6.2.2016, the next date fixed before the trial court and his cross-examination would be completed by counsel other than Mr. Mohan Lal Soni on payment of cost as already indicated hereinbefore.