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2017 DIGILAW 984 (GAU)

MD. SAFIQUR RAHMAN BARBHUIYA v. AJOY KUMAR DEY

2017-07-26

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. S. Biswas, learned counsel for the petitioner as well as Mr. N. Dhar, learned counsel appearing for the respondents. 2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 18.02.2015 passed by the learned Munsiff No. 3, Cachar, Silchar in T.S. No. 95/2005, rejecting the application for recalling the order dated 10.11.2014 and to cross-examine PWs No. 1 and 2. 3. On the perusal of the order dated 18.02.2015 passed by the learned trial court, it appears that on an earlier occasion by an order dated 31.08.2013, the cross-examination of the PWs was dispensed with and the evidence of PWs No. 1 and 2 was closed because the petitioner/defendant’s side remain absent till 12:15 PM. On an application being filed for recall of the order, the order dated 31.08.2013 was recalled by order dated 26.09.2014 at the cost of Rs.1500/- as a condition precedent and in course of time, the case was fixed on 10.11.2014. On that date, both the PWs. No. 1 and 2 were present but the petitioner/ defendant’s side did not turn up till 2:45 PM even after repeated calls and therefore, by order dated 10.11.2014, the cross-examination of PWs No. 1 and 2 were dispensed with by declaring the same as cross declined and the evidence of PWs were closed. 4. It is projected that on 10.11.2014, after the cross-examination was closed by passing order dated 10.11.2014, the petitioner/defendants filed an application being Petition No. 58/2010, by which prayer was made to vacate the order of closing the evidence of PWs No. 1 and 2 and to allow him to cross-examine the said witness and to further allow the petitioner/defendants to deposit an amount of Rs.1500/-. 5. The respondent/plaintiffs had filed their written objection and considering the submissions made by both sides, the learned trial court by referring to the previous default and the failure to cross-examine the witness on 10.11.2014 and the non-deposit of the cost of Rs.1500/-, which was condition precedent, held that there was no reason to allow any more opportunity to the petitioner/defendant in this regard and the petition was rejected. The said order dated 18.02.2015 is assailed in the present application. 6. The learned counsel for the petitioner has strenuously argued to permit him a last chance to cross-examine the PWs. No. 1 and 2. The said order dated 18.02.2015 is assailed in the present application. 6. The learned counsel for the petitioner has strenuously argued to permit him a last chance to cross-examine the PWs. No. 1 and 2. It is submitted that unless he is permitted to cross-examine the said PWs, his entire suit would lapsed. It is further submitted that he had approached the respondents/plaintiffs to give the cost but the same was refused. It is further prayed for ends of justice a last opportunity may be given and on the next date, if allowed, he cross-examine both the PWs without any fail. He also stated that the petitioner/ defendant was ready to also pay additional cost, if any, imposed by the court for the inadvertent default on part of his Advocate to cross-examine the PWs. 7. Mr. N. Dhar, learned counsel for the respondents has argued in support of the impugned order. 8. Having considered the submissions advanced by both sides, this Court is of the view that could have been a different matter if an adjournment was prayed for at 10:30 AM when the court had started its work. But to make the witness to sit for the entire day till 2:45 PM is found to be inexcusable. It amounts to a sort of punishment to a witness who had come to depose in a suit. This is a practice, which must be strongly deprecated, as it wastes an entire day of such witness. 9. The Apex Court in the case of Gayathri v. M. Girish, reported in AIR 2016 SC 3559 has deprecated the giving of adjournment at the drop of the hat. This Court is of the view that if a witness is present in court then the adversarial party cannot avoid to cross-examine such witness as was done in this case. By not conducting the cross-examination since 31.08.2013, the trial of the suit has been delayed for 4(four) years now. This is an appropriate time to quote an observation of the Hon’ble Supreme Court in the case of Noor Mohammed v. Jethanand, (2013) 5 SCC 202 , where it is stated that “Timely delivery of justice keeps the faith ingrained and establishes stability. This is an appropriate time to quote an observation of the Hon’ble Supreme Court in the case of Noor Mohammed v. Jethanand, (2013) 5 SCC 202 , where it is stated that “Timely delivery of justice keeps the faith ingrained and establishes stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such right is not only the creation of law but also a natural right….” 10. The present default does not appear to be the first default. As stated earlier, on the prior occasion also the petitioner/defendant failed to cross-examine the witness on 31.08.2013, for which the evidence of the PWs No. 1 and 2 was closed by order dated 31.08.2013. Moreover, when the cost of Rs.1500/- was imposed and making it a condition precedent, such cost fall within the meaning of Section 35B of the CPC. The Section 35B CPC is quoted below: “35B. Costs for causing delay.- (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit— (a) fails to take the step which he was required by or under this Code to take on that date, or (b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs, as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of,— (a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs, (b) the defence by the defendant, where the defendant was ordered to pay such costs. Explanation : Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the court to pay such costs. Explanation : Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the court to pay such costs. (2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.” 11. From the plain reading of provisions of Section 35B CPC it would appear that if a cost which is made condition precedent is not paid that would preclude further prosecution of the defence by the defendant where the defendant was ordered to pay such cost. As it is seen that the cost which was imposed by order dated 26.09.2014 was not deposited, this Court does not find any infirmity in closing of the cross-examination and evidence of the PWs as the same is in consonance with the provisions of Section 35B CPC. In this regard, this Court is guided by the case of Manohar Singh v. D.S. Sharma, reported in (2010) 1 SCC 53 , where it has been held that if cost for seeking an adjournment to cross-examine the witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party. 12. Therefore, in both the views i.e. firstly on merit of the prayer for allowing further cross-examination of PWs and also on the view that when the costs are made condition precedent, the non-payment would foreclose the right of the defaulting party, hence, this Court does not find any infirmity with the impugned order and therefore, the order dated 18.02.2015 passed by the Munsiff No. 3, Cachar, Silchar in T.S. No. 95/2005 is upheld and the present revision stand dismissed. The parties are left to bear their own cost. 13. The stay order passed earlier shall stand vacated. 14. The parties are left to bear their own cost. 13. The stay order passed earlier shall stand vacated. 14. The parties are directed to appear before the learned Munsiff No. 3, Cachar, Silchar on 17.08.2017 without any further notice for appearance and by producing a certified copy of this order, shall seek further instruction from the said learned court.