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2014 Supreme(Bom) 1203
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR
A. P. BHANGALE, J.
Anandrao @ Amrut S/o Krushnarao Tirmanwar ..... Petitioners
Versus
Prashant S/o Madhukar Patil ..... Respondents
Writ Petition No.2852 of 2014
Decided on : June 23, 2014
Shri M.P. Kariya, Counsel for the Petitioners.
Shri R.R. Shrivastava, Counsel for Caveator R-1 to 4.
Headnote:Civil Procedure Code, 1908 - Order XVII, Rules 1 and 2, Order XVIII, Rule 4 - Cross-examination of witnesses of plaintiff. - Closure of cross-examination of plaintiff’s witness on ground of seeking repeated adjournments by defendants improper. - The defendants were disabled from the proceeding with the trial for the reason of absence of their counsel due to the fact that he had gone out of town and further when the counsel was present he needed instructions to cross-examine the witness and, therefore, adjournments were sought.
In such cases, refusal to grant permission to cross-examine the witness on the ground that repeated applications were made for adjournments may be harsh particularly when it has to be considered that litigant shall not suffer due to sudden absence of his counsel or due to the fact that counsel was not sufficiently instructed to proceed with the cross-examination. In such cases, that other side can be compensated with reasonably sufficient costs so that if the party seeking permission to proceed with the trial can go ahead with the trial while at the same time, it must compensate the other side with costs. This can be done before harsh decision to close the evidence in the case.
1. Rule. Rule made returnable forthwith. Heard the petition by consent of the learned Counsel appearing for both the parties.
2. This writ petition challenges order dated 7.4.2014, passed below Exh.72, by the learned Civil Judge Junior Division, Zari-Jamni, District Yavatmal, in Regular Civil Suit No.13 of 2013, whereby the application filed by the petitioners/defendants for grant of permission to cross-examine the respondents/plaintiff’s witness No.1 was rejected on the ground that the circumstances in the suit were such that it would be abuse of process of law if the petitioners/defendants are granted permission to proceed with the trial and cross-examine the witness at their leisure and pleasure. Learned trial Judge found that there was no sufficient reason to grant the permission to the petitioners/defendants for cross-examination of the respondents/plaintiffs. The impugned order was passed under the circumstances that examination-in-chief of the witness examined on behalf of the respondents/plaintiffs was complete on 21.10.2013 and thereafter the petitioners/defendants adopted tactics of repeating applications seeking adjournment of the trial.
3. According to the learned counsel appearing for the respondents/plaintiffs, such applications for adjournment were granted on 8.11.2013, 29.11.2013 and 20.12.2013. However, on 17.1.2014 such application (Exh.68) for adjournment was rejected and cross-examination was closed.
4. However, again on 30.1.2014 permission was sought to cross examine the respondents/plaintiffs which was belated application and since the cross-examination was already closed by order dated 17.1.2014 below Exh.68, by impugned order learned trial Judge refused to permit the petitioners/defendants an opportunity to cross examine the witness on behalf of the plaintiffs.
5. The grievance of the respondents/plaintiffs is that repeated applications for adjournments ought not to have made by the petitioners/defendants in order to delay the trial and sufficient opportunity was granted to the petitioners/defendants to proceed with the trial and to cross examine the respondents/plaintiffs.
6. On the other hand, learned counsel appearing for the petitioners/defendants, contends that final opportunity to cross examine the witness on behalf of the respondents/plaintiffs could have been granted on the principle that for error of the Advocate the litigant should not suffer, as Advocate remained absent who was required to conduct cross examination on behalf of the petitioners/defendants. The petitioners/defendants had also prayed for engaging another Counsel as their earlier Counsel was not available and had gone to Hyderabad.
7. I have considered the reply on behalf of the respondents/plaintiffs as well as anxiety of learned counsel appearing for the petitioners/defendants that one final opportunity could have been granted by the learned trial Judge for the petitioners/defendants to cross examine the witness for the plaintiffs. I think, in such cases when repeated adjournments are sought, learned trial Judge can be justified to impose reasonable costs upon the party applying for adjournments and if such applications are repeated even exemplary costs be imposed for to prevent the litigant from seeking repeated adjournments in the trial Court, before a very drastic action is taken for to close the case and shut up the party applying for adjournments during hearing of the suit.
8. Learned counsel appearing for the petitioners/defendants submits that under the circumstances when learned counsel for the petitioners/defendants had gone to Hyderabad, and on next date some instructions were required by the counsel to properly and effectively cross-examine the witness, hence adjournments were sought. Thereafter, the petitioners/defendants had also prayed for engagement of another Counsel since their earlier Counsel was not available as he had gone to Hyderabad.
9. Thus, for non-availability of Counsel another Counsel was en
