The court emphasized the need for timely proceedings and ruled that an absence of a written statement does not negate the right to cross-examine, but delaying tactics signify abuse of process.

ORDER :

(M. NAGAPRASANNA, J.)

The petitioner is before this court calling in question an order dated 19.06.2024 by which the concerned Court rejects application Nos.18 and 19 seeking recommencement of the evidence from the stage of defense evidence to the stage of cross examination and also recall of PW.1 for further cross examination.

2. Heard Sri.X.M.Joseph, learned counsel appearing for the petitioner, Sri.P.N.Manmohan, learned counsel for Sri.Vinay N., learned counsel appearing for respondent No.2.

3. Facts in brief germane are as follows:

(a) The petitioner is defendant No.11. The respondent Nos.1 and 2 are the plaintiffs. Defendant No.11 is the wife of defendant No.2. The plaintiffs institutes a commercial suit in Commercial O.S.No.352/2020 for the purpose of recovery of money. The backdrop of the claim is that the plaintiffs enter into a Joint Venture Agreement with defendant No.11, petitioner and other respondents for establishment of the hospitality projects in trade name "Purlieu" and "Moonglade".

(b) Dispute between the two with regard to recovery of money leads the plaintiffs to the Commercial Court in Com.O.S.No.352/2020. The issue in the lis is not with regard to the money of the claim or the defense of the petitioner. In the proceeding, two applications are filed by the petitioner- defendant No.11 in I.A.Nos.18 and 19 to recall the case from the stage of closing evidence of plaintiffs and begin the defense evidence and further cross-examination of PW.1 to be recalled for the purpose of further cross-examination. The concerned Court rejects both applications, the rejection of which has driven the petitioner to this Court in the subject petition.

4. The learned counsel appearing for the petitioner would vehemently contend that the order passed by the concerned Court is opposed to law and several settled principles in plethora of judgments of the Apex Court. He would reiterate the submissions made before the concerned Court to buttress his submission that the applications deserve to be allowed, but have been dismissed.

5. Per contra, the learned counsel Sri.P.N.Manmohan representing the respondent No.2 would take this court through the dates and events and contend that the petitioner is deliberately wanting to file these applications only to protract the proceedings and would submit that several dates have passed by where the examination or cross-examination has not been done. Learned counsel Sri.X.M.Joseph, appearing for the petitioner would join the issue contending that the ground on which the concerned Court has rejected the applications is that defendant No.11 has not filed her Written Statement. He would contend that non-filing of the Written Statement cannot be a reason to strike off defense or right to cross-examine.

6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the material on record.

7. The afore-narrated facts are not in dispute.

8. In the light of the contention that the reason rendered by the concerned Court is not filing of the Written Statement, I deem it appropriate to notice the reasons so rendered.

"07. Point No.1: In support of the application No.18 and 19 Smt.Divya Girish/D11, the Director of the defendant No.1 company has sworn to an affidavit.

08. In the affidavit it is averred that on 02.04.2024, PW.1 was fully cross-examined by the advocate for defendant No.2. That the counsel representing defendant No.11 was present throughout the course of cross- examination of PW.1 by defendant No.2 counsel. That the counsel for defendant No.11 was not keeping well as such he was not in a position to cross-examine the PW.1 on that date even though Court had some time to take the case for cross-examination by defendant No.11.

09. That the defendant No.