Ajmal Hussain S/o Mohd. Umar vs Jannat W/o Wali Mohammed

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).

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 cross-examine him, as the said counsel was busy in

another Court.

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.

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.

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.

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 cross-

examination 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. Joshi further submitted that the application dated

21.05.2016 moved by the petitioner had been filed, without any

affidavit in its support.

Heard learned counsels for the parties and perused the

material available on record.

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

cross-examine the said witness PW-2, Abdul Rashid.

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.

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.

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.

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.

The writ petition stands allowed, however, subject to cost of

Rs.1,000/- to be paid by the petitioner to the witness PW-2.