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2026 Supreme(Online)(Guj) 17815
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Devan M. Desai, J
JITESHBHAI RAJENDRABHAI KADAMV/sJAYRAM CHHAGANBHAI NARIYA
C/SCA/17159/2025 | R/SPECIAL CIVIL APPLICATION NO. 17159 of 2025
For the Appellants/Petitioners: Nikhilesh J Shah, Hareshkumar J Nihalani
For the Respondents:
The court may restore a party's right to cross-examine and lead evidence, even after multiple closures, if genuine medical grounds are established, prioritizing the interests of justice over technical procedural defaults.
Headnote:The petition was filed under Art. 227 of the Constitution of India, 1950, challenging the trial court's order rejecting applications to reopen the stage of cross-examination and to permit the defendant to lead evidence in a recovery suit. The defendant's right to cross-examine the plaintiff had been closed twice due to non-appearance and failure to proceed. The court found that the defendant had provided medical evidence demonstrating he suffered from paralysis for three months, which hindered his ability to instruct counsel. The primary issue was whether the right to cross-examine and lead evidence should be restored despite repeated defaults. The court reasoned that while the defendant's conduct appeared lackadaisical, a "justice oriented" approach is necessary when genuine medical ailments are proven, ensuring that a party is not denied a fair trial on purely technical grounds. With these directions, the present petition is accordingly disposed of as allowed.
| Table of Content |
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| 1. procedural history of the recovery suit and the repeated closure of the defendant's right to cross-examine. (Para 1 , 2 , 3 , 4) |
| 2. justification for procedural default based on medical incapacity and judicial custody. (Para 5) |
| 3. balancing party conduct with proven medical necessity to ensure a justice-oriented approach. (Para 6 , 7) |
| 4. restoration of the right to cross-examine and lead evidence subject to costs and strict timelines. (Para 8 , 9 , 10) |
JUDGMENT
1. The present petition is filed under Article 227 of the Constitution of India, 1950 by the petitioner - original defendant praying for following prayers:-
"(a) That this Hon'ble Court may be pleased to call for Record and proceedings of application Exh. -116 and Exh. -117 along in the SPCS Suit No 489 OF 2015 pending before the Hon'ble Sr Civil Judge at Surat;
b) That this Hon'ble Court be pleased to Invoke its power Under Section 115 of C.P.C and on perusing and looking into the propriety and legality of the order dated 20/09/2025 passed by the Hon'ble Sr Civil Court in application Exh. -16 and Exh. -117 be pleased to quash and/or Set-aside the order dated 20/09/2025;
c) That this Hon'ble Court may be pleased to allow the Civil Revision Application under Order 18 Rule 4 (2) of Code of Civil Procedure, 1908;
d) That pending the hearing and final disposal of this petition further proceeding in SPCS Suit No 489 OF 2015 PENDING BEFORE Hon'ble Sr Civil Court At Surat (Trial Court) be stayed;
e) Ad-interim and interim reliefs in terms of prayers (d) above;
f) Costs of the Application.
g) Such further and other reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case."
2. Heard learned advocate Mr. Nikhilesh J Shah with learned advocate Mr. Hareshkumar J Nihalani for the petitioner.
3. Learned advocate for the petitioner submits that the plaintiff filed a suit for recovery of Rs. 1,20,00,000/- (Rupees one Crore twenty Lakhs only). Affidavit in lieu of Examination in Chief was submitted by plaintiff on 04.04.2022. The defendant could not cross-examine the plaintiff and therefore, the right to cross-examination of plaintiff came to be closed. Upon an application, the right to cross-examination was reopened on 17.02.2025 with a cost of Rs. 20,000/-.
4. It is further submitted that the cost amount was deposited by defendant. The new counsel of defendant applied for time on 03.03.2025 which was granted by learned Court and matter was adjourned to 15.04.2025. As the defendant failed to cross-examine plaintiff on the relevant date, right to cross-examine the plaintiff was again closed. Thereafter, an application Exh.116 and 117 praying for reopening the stage of cross-examination of plaintiff and to permit defendant to lead evidence came to be submitted by defendant. Both applications came to be rejected, against which the present petitioner is before this Court.
5. It is submitted by learned advocate that petitioner was suffering from paralysis from January 2025 for a period of three months and therefore could not give proper instructions to newly appointed counsel to cross-examine plaintiff. It is submitted that the petitioner was detained in judicial custody for about six months. For all these reasons, the necessary instructions could not be given to a concerned counsel. It is submitted that the defendant has good case on merits and if a chance is given to the defendant to cross-examine the plaintiff as well as to lead evidence, the purpose of justice would be served. It is submitted that on the technical ground of rejection of right to cross-examine plaintiff and by not permitting the defendant to lead evidence would lead to injustice to defendant. Therefore, in the interest of justice, the application Exh. 116 and 117 be allowed by quashing and setting aside the impugned order.
6. Having considered the submissions canvassed by learned advocate for the petitioner and on perusal of the impugned orde
