Brijesh Kumar Trivedi vs Lali Bai

Sujoy Paul. J.

Heard

This petition is directed against the order dated 10.04.2014 whereby petitioner''s application u/s 151 C.P.C. (Annexure P/7) is rejected by the Court below.

Brief facts necessary for deciding this matter are as under:-

The plaintiff/respondent No. 1 filed a suit for declaration and permanent injunction. Present petitioner/defendant No. 4 filed his written statement. Thereafter he filed application under Order 6 Rule 17 C.P.C. which was rejected by the Court below on 09.04.2013. The petitioner filed WP No. 2630/2013 before this Court challenging the order dated 09.04.2013 which was decided on 15.01.2014. This Court allowed the petition and directed that amendment application needs to be treated as allowed. Subject to payment of costs, petitioner shall incorporate the same and court below shall proceed from that stage in accordance with law.

It is not in dispute between the parties that amendment was incorporated in the written statement. Thereafter the Court below modified the issue No. 2 by order dated 25.02.2014. On the strength of amended pleadings and modified issue, petitioner filed an application u/s 151 C.P.C. which is rejected by the Court below. In the said application dated 10.03.2014 it is prayed that in view of amendment incorporated and issue modified, petitioner be given permission to cross-examine the plaintiff and for this purpose plaintiff be recalled.

Shri D.D. Bansal criticized the order of the Court below and submits that the Court below has erroneously rejected the said application on the ground that petitioner has already cross-examined the witnesses in extenso. He submitted that the Court cannot presume as to what questions will be asked by the petitioner after incorporation of amendment in written statement and after framing of issue. He relied on Ram Vishal alias Vishali Kachhawaha Vs. Dwarka Prasad Jaiswal, .

Prayer is opposed by Shri A.V. Bhardwaj, Advocate for the other side.

I have heard learned counsel for the parties and perused the record.

It is true that this Court allowed the amendment application and consequently amendment was incorporated. Amended pleading reads as under:-

Issue No. 2 framed earlier reads as under:-

Issue No. 2 was modified on 25.02.2014 which reads as under:-

A bare perusal of modified issue shows that only underlined portion is added.

Shri D.D. Bansal strenuously contended that petitioner has a valuable right to cross-examine the plaintiff witnesses on the basis of amended pleadings. However, amended pleadings reproduced hereinabove, if examined in juxta position to the detailed cross-examination made by the petitioner to the plaintiff witnesses, shows that the petitioner has left no stone unturned to ask every possible question. There is no doubt that in normal circumstances the witnesses may be recalled for further cross-examination. However, in the present case, the petitioner has cross-examined the witnesses in extenso even as per his amended pleadings and modified issue.

The Court below has taken a plausible view. Relevance and justification of prayer can always be examined by the court below. In the opinion of this Court, Court below has taken plausible view. The order of Court below cannot be termed as an order without jurisdiction nor it suffers from any perversity.

Thus, no interference under Article 227 is warranted. Petition is not entertainable and is hereby dismissed.