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Madhya Pradesh High Court · body

2017 DIGILAW 34 (MP)

Jagdish v. Ramsevak Bandil

2017-01-09

ROHIT ARYA

body2017
ORDER 1. This writ petition under Article 227 of the Constitution of India by defendant No.1 is directed against the order dated 20.12.2016 passed in Civil Suit No.5A/2014 by the trial Court. The trial Court has closed the right of cross-examination, on plaintiff. 2. Upon perusal of the order impugned, it appears that the petitioner/defendant No.1 instead of conducting cross-examination on plaintiff sought time to move the High Court against the earlier order of the trial Court dated 16.12.2016. The trial Court did not acceed to the aforesaid prayer and rejected the application filed under section 151 CPC. Consequently, the right for cross-examination on plaintiff has also been closed. 3. Shri V.K. Bhardwaj, learned senior counsel contends that merely for the reason that time was sought to question the order passed by the trail Court dated 16.12.2016 in the High Court, this by itself ought not to have been treated as frivolous prayer and in all fairness, time should have been granted as the defendant/petitioner intend to challenge the legality, validity and propriety of the aforesaid order. It is submitted that as the right to cross-examination is a valuable right, the same cannot be denied for the reason stated in the impugned order. Learned senior counsel submits that the suit was filed in the year 2013. The defendant has filed written statement in the month of June, 2014 and thereafter, the defendant has all along been participating in the proceedings. Therefore, the trial Court has committed illegality while closing the right of cross-examination on plaintiff. 4. Per contra, Shri N.K.Gupta, learned senior counsel contends that petitioner's past conduct of default led to undue delay in conclusion of the trial. He submits that the suit was filed on 1.12.2013, defendant entered appearance on 19.12.2013 and the right to file written statement was closed on 16.8.2014. The same was challenged before this Court in Writ Petition No.5354/2014 and this Court vide order dated 18.11.2015 gave indulgence to the petitioner to file the written statement on payment of cost and also ordered the trial Court to decide the suit within 08 months. Thereafter, time and again, number of applications were filed by the defendant on several dates with the collateral purpose of seeking adjournment as a result till date the suit remained pending. Thereafter, the defendant No.1/petitioner has filed an application under Order VI rule 17 CPC before the trial Court. Thereafter, time and again, number of applications were filed by the defendant on several dates with the collateral purpose of seeking adjournment as a result till date the suit remained pending. Thereafter, the defendant No.1/petitioner has filed an application under Order VI rule 17 CPC before the trial Court. That was rejected vide order dated 15.2.2016. This Court while disposing of Writ Petition No.1375/2016 on 24.6.2016 by allowing the application has permitted the petitioner to amend the written statement. Thereafter, the written statement was amended and the additional issues have been framed on 17.8.2016. The plaintiff submitted evidence on affidavit under Order XVIII rule 4 CPC on 13.5.2016. Thereafter, the defendant against sought time. On 6.9.2016, the cross-examination on plaintiff was started, further extended to 16.12.2016, therefore, to some extent, the cross-examination on plaintiff was conducted, but the defendant/petitioner filed an application for consolidation of different suits on 16.12.2016. The same was rejected on 16.12.2016. Therefore, looking to the chain of events, the petitioner has been deliberately not concluding the cross-examination on plaintiff, hence, the decision of the trial Court closing right of the petitioner cannot be faulted with. 5. Heard. 6. Upon perusal of the order sheets placed on record and after hearing learned senior counsel for the parties, true it is that this Court while disposing of Writ Petition No.5354/2014 (supra), at the instance of the petitioner has ordered the trial Court decide the suit within eight months. However, this Court at a subsequent stage allowed Writ Petition No.1375/2016 (supra), permitting the petitioner/defendant No.1 to amend the written statement and thereafter additional issues have been framed on 17.8.2016. The cross-examination on plaintiff though started on 6.9.2016 could not be concluded, as such there appears to be undesirable delay caused in conclusion of cross-examination, on the plaintiff. On the one hand, there is an order passed by this Court in Writ Petition No.5354/2014 (supra), with a direction to the trial Court to dispose of the suit in eight months and on the other hand for differment of incomplete cross-examination on the plaintiff, the petitioner is seeking time to challenge the order passed by the trial Court dated 16.12.2016. Under these circumstances, the order impugned passed by the trial Court cannot be faulted with. Under these circumstances, the order impugned passed by the trial Court cannot be faulted with. However, as the procedural laws are intended to do complete justice between the parties and the fact that right of cross-examination is a valuable right for the defendant, therefore, it is considered apposite to extend one opportunity to the petitioner for completion of the cross-examination on plaintiff bearing in mind the concept of justice, equity and good conscience. 7. Consequently, writ petition is disposed of with a direction that the petitioner shall appear before the trial Court on the next date fixed and pay cost of Rs.10,000/- (Rupees ten thousand only) and thereafter, the trial Court shall fix a date for completing the cross-examination on plaintiff. The petitioner shall appear before the trial Court on the date so fixed. However, it is made clear that as final opportunity has been afforded, the cross-examination on the plaintiff shall not be deferred by the trial Court.