The court balanced equities and granted a final opportunity to the defendants to cross-examine PW3, subject to conditions, despite not approving their conduct.

ORDER :

The petitioners were the defendants in O.S. No.3575/2001 on the file of the City Civil Court, Bengaluru. They have filed this Writ petition challenging the order dated 27.06.2022 in terms of which an application filed by them to recall PW3 for cross-examination was rejected on the ground that defendants had failed to use the opportunities granted.

2. The parties shall henceforth be referred to as they were arrayed before the trial Court.

3. The suit in O.S. No.3575/2001 was filed for declaration that the wall constructed on the eastern side of the suit property by the defendants was illegal and unauthorised and consequently to remove the wall and for other consequential relief's. The suit was contested by the defendants who claimed that the wall constructed by them was within their property.

4. The trial Court framed issues and recorded the evidence of the plaintiff. When the case was set-down for the evidence of the defendants, an application was filed by the defendants to recall PW3 for cross-examination. It was contended in the application that the counsel for the defendants was engaged in another case and by the time he rushed back to the Court, PW3 was discharged. This was objected by the plaintiff on the ground that the reasons assigned in the affidavit was bald and weak. It was claimed that PW3 had come to Bengaluru from Kochi and had to return back to catch a flight on the same day. The trial Court noticed these contentions in terms of its order dated 27.06.2022 and rejected the application. Being aggrieved by the said order, this writ petition is filed.

5. The learned counsel for the defendants submitted that the case was set-down for the cross-examination of PW3 on 24.05.2022. He claimed that the counsel was engaged in another case where this Court had issued a direction to conclude the trial. He submitted that a request was made for passing over the case. After completion of the work in the other cases he reached the Court and found that the recording of evidence in another case was going on. Thus, the Court directed him to cross-examine PW3 by 2.45 p.m. The counsel on record for the defendants came to know from his brother advocate in the other case, that he would need half an hour to complete the cross-examination. Therefore, the counsel for the defendants went to attend a case before the Commercial Court where he waited upto 5 O'clock and by the time he reached, PW3 was discharged. The learned counsel therefore submitted that this was a bonafide mistake and the same be condoned.

6. Per contra, the learned counsel for the plaintiff submitted that PW3 travelled from Kochi to Bengaluru to attend the case and therefore, the defendants must have taken care to cross-examine PW3.

7. I have considered the submissions made by the learned counsel for the parties.

8. It is not in dispute that the case was set-down for cross-examination of PW3 on 06.04.2022 and 13.04.2022. On these two dates though PW3 was present time, was sought. Again on 13.04.2022 it was adjourned to 24.05.2022. On the said date too, DW3 was not cross-examined. Therefore, the trial Court was justified in discharging PW3.

9. However, when the defendants appeared before the Court and expressed their difficulty in not cross- examining PW3, the Court must have pragmatically considered the difficulty faced by the witness as well as the counsel and must have put the defendants on terms, so as to ensure minimum hardship to PW3 and also at the same time ensure that PW3 is cross-examined at the earliest point in time. Depriving an opportunity to cross-examine a witness in a suit for substantive relief, would rob him of his rights.

10. In that view of the matter, this Court though does not approve the conduct of the defendants, but yet in order to balance out equities, considers it appropriate to grant a final opportunity to permit them to cross-examine PW3, subject to conditions.

In view of the above, this writ petition is allowed.

The impugned order dated 27.06.2022