ORAL ORDER

This petition is filed under Article 227 of the Constitution of India challenging orders passed below Exh.72 dated 3.7.2018 as also below Exh.92, dated 27.9.2018 passed by Principal Senior Civil Judge, Deesa, District: Banaskanatha in Special Civil Suit No.3 of 2011 whereby an application preferred by the petitioners-defendants for opening the right of cross examining the plaintiffs as also staying the proceedings since High Court has passed the order to maintain status-quo in respect of suit property which came to be partly allowed permitting the petitioners-defendant to cross examine the plaintiffs imposing cost of Rs.3,000/- and prayer for amendment of the written statement under Order VI Rule 17 of the Code of Civil Procedure, 1908, came to be rejected respectively.

Mr.N.K.Majmudar, learned advocate for the petitioners has submitted that so far as imposition of cost for opening right to cross examine the plaintiff is concerned, the examination in chief afÏdavit filed by the plaintiff was not served upon the defendants or their advocate and therefore, cost should not have been imposed while opening the right to cross examine the plaintiffs.

However, looking at the order, it is clear that the day on which examination in chief on oath filed by the plaintiff, he was present before the Court but learned advocate representing the defendants was not present and therefore, he could not be cross examined. In that view of the matter, the right to cross examine the plaintiff came to be struck out by the Court vide an order dated 17.6.2013 but since prayer for opening right to cross examine the witness came to be filed only on 14.9.2017 while permitting cross examination to be conducted, the learned trial Judge has rightly imposed the cost and as such, application came to be filed at a belated stage but permitting the valuable right to cross examination. Hence, I see no reason to interfere in the order passed below Exh.72 dated 3.7.2018 by the learned trial Judge.

So far as order passed below Exh.92 is concerned, it again requires no interference on the following facts.

Vide an application Exh.92, the defendants have prayed that they have been deprived of their possession and therefore, they sought for an amendment in the written statement that in case plaintiffs fail in the suit, they may be directed to handover the possession to the defendants and permanent injunction against them not to interfere thereafter in the said possession. However, there is no counter claim filed by the defendants while filing their written statement and if they are deprived of the possession, if at all it is true, they may have right to file a separate suit as cause of action is different. At any rate, after issues were framed, examination of plaintiff is over, no such amendment, that too, to the written statement in the nature as aforesaid could have been prayed for and therefore, it is rightly not granted by the Court. Therefore, while exercising the jurisdiction under Article 227 of the Constitution of India, I see no reason to interfere with the discretionary orders passed by the learned trial Judge. Hence, this petition is rejected. Notice discharged.

(UMESH A. TRIVEDI, J)

ASHISH M. GADHIYA