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2016 DIGILAW 592 (RAJ)

Mahaveer Prasad v. Sumermal

2016-04-28

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against order dated 19.11.2015 passed by the trial court whereby, the petitioner's application under Order 18, Rule 17 CPC has been rejected. 2. The respondent filed suit for eviction; after the written statement was filed, the affidavit of PW-1 Sumermal was filed on 23.03.2015 and the matter was fixed for cross-examination on 24.03.2015; it appears that on the same day some order on application under Order 22, Rule 4 CPC was passed; the counsel appearing for the petitioner, for challenging the validity of order dated 24.03.2015 sought time, which was declined by the Court as the witness had come from Kolkata and was of advanced age. 3. Thereafter after six dates, the present application under Order 18, Rule 17 CPC was filed for recalling the witness for cross-examination, which was rejected by the trial court on account of delay in filing the application. 4. It is submitted by learned counsel for the petitioner that the petitioner may be granted one opportunity to cross-examine the plaintiff's witness PW-1 Sumermal and in case the said opportunity is not granted, the petitioner's defence would be seriously prejudiced. 5. Learned counsel for the respondent opposed the prayer made by the petitioner. It was submitted that the written statement was filed after passage of eight years and there was apparently no reason for the petitioner to seek time on 24.03.2015 to cross-examine PW-1 Sumermal and, therefore, the trial court was justified in rejecting the application, which also was much delayed. 6. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 7. It is no doubt true that there was no justification for the petitioner to seek time on 24.03.2015 only on account of his purported intention to challenge the order dated 24.03.2015 passed on an application under Order 22, Rule 4 CPC, which challenge also appears to have not been laid. Thereafter, filing of the application after six dates also does not support the plea of bona fide on the part of the petitioner. However, in the circumstances of the case, wherein the plaintiff's evidence, if it remains un-rebutted, the defence of the petitioner would be indeed prejudiced, the petitioner deserves a chance to cross-examine the said witness on payment of cost. 8. However, in the circumstances of the case, wherein the plaintiff's evidence, if it remains un-rebutted, the defence of the petitioner would be indeed prejudiced, the petitioner deserves a chance to cross-examine the said witness on payment of cost. 8. In view thereof, the petitioner is granted one opportunity to cross-examine PW-1 - Sumermal on the next date fixed before the trial court i.e. 13.07.2016 on payment of cost of Rs. 10,000/- to the plaintiff. The plaintiff PW-1 Sumermal will remain present before the trial court on 13.07.2016. On the said date the petitioner will cross-examine the said witness. No further opportunity shall be granted either for payment of costs or for cross-examination, if the petitioner either fails to pay the costs or cross-examine the said witness. With the above observations and directions, the writ petition filed by the petitioner stands disposed of.