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2017 DIGILAW 2041 (RAJ)

Ajmal Hussain v. Jannat

2017-09-11

DINESH MEHTA

body2017
JUDGMENT Dinesh Mehta, J. - By way of the present writ petition, the petitioner has challenged the order dated 13.01.2017, whereby the learned Court below has refused the petitioner''s request for reopening the cross-examination of the witness, PW-2,(Abdul Rashid). 2. The facts relevant for decision of the present case are that in a suit for permanent and mandatory injunction filed by the plaintiff, the defendant PW-2 Abdul Rashid appeared in the witness-box on 19.05.2016, on said date, the petitioner''s counsel could not crossexamine him, as the said counsel was busy in another Court. 3. On failure to cross-examine the witness, until the Court hours, the learned Court below closed the petitioner''s right to cross-examine the said witness, vide its order dated 19.05.2016. 4. Faced with such situation, an application dated 22.05.2016 came to be moved on behalf of the petitioner, seeking reopening of the right of cross-examination of PW-2. The learned Trial Court rejected petitioner''s such application, inter alia, observing that the application in question falls within the ambit of Section 114 and Order 47, Rule 1(1) of the Code of Civil Procedure. While rejecting the petitioner''s application, the Trial Court observed that there is no apparent error on the face of the record, warranting review of the order dated 19.05.2016. 5. Mr. Govind Suthar on behalf of Mr. Manoj Bhandari, learned counsel appearing for the petitioner, challenging the order dated 13.01.2017 impugned in the present writ petition, contended that the learned Trial Court has misdirected itself and has rejected petitioner''s genuine request on a hyper-technical ground by confining the said application within the parameters of Section 114 and Order 47, Rule 1 of the Code of Civil Procedure (seeking review). He added that petitioner''s application was simply with a view to resurrect his right of cross-examination of PW-2, such application had been moved on 21.05.2016, immediately within two days of the closure of the petitioner''s right of cross examination. 6. On the other hand, Mr. R.C. Joshi and Mr. Sheetal Kumbhat, learned counsels appearing for the respondents, justifying the order passed by the Court below, submitted that it was required of the petitioner''s counsel to have present himself for crossexamination and in absence of his counsel, if the Court below has rejected the petitioner''s right of cross-examination, no interference under Article 227 of the Constitution of India can be made. Mr. Mr. Joshi further submitted that the application dated 21.05.2016 moved by the petitioner had been filed, without any affidavit in its support. 7. Heard learned counsels for the parties and perused the material available on record. 8. A perusal of the application filed on behalf of the petitioner shows that the petitioner had indicated cogent and valid reasons, for which his counsel could not present himself for cross-examining PW-2 Abdul Rashid. It was stated in the application that the Associate (Junior) of the said counsel had requested the Trial Court to adjourn the matter, as he was arguing in another Court. In the opinion of this Court, the learned Trial Court ought to have adjourned the matter for enabling the petitioner''s counsel to crossexamine the said witness PW-2, Abdul Rashid. 9. Be that as it may, having closed the right of cross-examination, the learned Trial Court''s refusal to grant indulgence to the petitioner, even vide application dated 21.05.2016, cannot be countenanced by this Court. 10. The learned Court below has seriously erred in rejecting such application treating the same to be an application for review of the order dated 19.05.2016, treating the same to be filed under Section 114 and Order 47, Rule 1 of the Code of Civil Procedure. In the considered opinion of this Court, the learned Trial Court has applied hyper-technical approach, which has resulted in substantial failure of justice. 11. As far as the argument of Mr. R.C. Joshi, that the application in question was not supported by the affidavit, is concerned, this Court is of the view that the averments made in the application did not require any affidavit, particularly when even the respondent - plaintiff had not opposed and not filed any reply to such application. 12. In view of the discussion above, the impugned order dated 13.01.2017 passed by the Court below is quashed and set aside. The learned Trial Court, on the next date of hearing before it, shall fix the case for cross-examination of the witness PW-2, Abdul Rashid, for which, the petitioner shall pay a cost of Rs. 1,000/- to him, at the time of cross-examination. 13. The writ petition stands allowed, however, subject to cost of Rs. 1,000/- to be paid by the petitioner to the witness PW-2.