ORDER

The defendant in O.S.No.10/2016 on the file of the Principal Civil Judge, Sagar (henceforth referred to as 'Trial Court') has filed this petition challenging an order dated 27.07.2021 by which, an application filed by him under Order XVIII Rule 17 of CPC to recall PW.1 for cross-examination, was rejected.

2. The suit in O.S.No.10/2016 was filed for declaration and recovery of possession of an agricultural land in Sy.No.118/3 of Shiravala village, Kasaba Hobli, Sagar Taluk. The defendant contested the suit and claimed that he was in possession of the suit property in his own right.

3. Based on these contentions, the Trial Court set down the case for trial after framing issues. When the suit was set down for cross-examination of PW.1, the defendant did not cross-examine him partly due to COVID-19 protocols, during which time, the Courts were closed. Therefore, cross- examination of PW.1 was taken as 'Nil' and the case was posted for evidence of the defendant. At that stage, the defendant filed an application under Order XVIII Rule 17 of CPC to recall PW.1 for cross-examination.

4. This application was rejected by the Trial Court in terms of the impugned order on the ground that despite grant of adequate opportunity, the defendant did not take advantage of the same and therefore, he was not entitled to further opportunity.

5. Being aggrieved by the same, the defendant has filed this petition.

6. The learned counsel for the defendant submits that the suit is filed for substantive reliefs and therefore, an opportunity deserved to be granted to the defendant. He further contends that due to COVID -19 protocols, PW.1 could not be cross-examined and the Trial Court without considering this, refused to grant permission to cross-examine PW.1.

7. Per contra, the learned counsel for the plaintiff contended that the defendant has been unduly delaying the proceedings in the suit and the fact that he did not take advantage of the opportunity granted by the Trial Court to cross-examine PW.1, shows an oblique intent on the part of the defendant to protract the proceedings.

8. I have considered the submissions made by the learned counsel for the defendant as well as the learned counsel for the plaintiff.

9. The suit was filed for declaration and recovery of possession of an agricultural land. The record discloses that PW.1 was examined and the case was posted for his cross- examination on 24.07.2018 and since the defendant did not cross-examine PW.1, his cross-examination was taken as 'Nil'. Again an application filed by the defendant was entertained and PW.1 was recalled. However, PW.1 again was not cross- examined on 18.12.2018 and the Trial Court treated his cross- examination as 'Nil'. Thereafter, an application was filed to recall PW.1 for cross-examination, which was allowed, but yet the defendant did not cross-examine PW.1 on 23.07.2019 and the Trial Court treated his cross-examination as 'Nil'. Again an application was filed to recall PW.1 but he failed to cross- examine PW.1 on 08.03.2021 and therefore, the Trial Court treated his cross-examination as 'Nil' and posted the case for the evidence of the defendant. The contention of the learned counsel for the defendant that PW.1 could not be cross- examined due to COVID -19 protocols, is therefore, incorrect. The way, in which, the defendant has protracted the proceedings go to show that the defendant had an oblique intent to delay the proceedings. Having regard to the conduct of the defendant in not cross-examining PW.1 despite opportunities granted by the Trial Court, he does not deserve any further indulgence and the Trial Court was in a way right in refusing to recall PW.1 for cross-examination. However, we cannot lose sight of the fact that the Hon'ble Apex Court had held that the period between 15.03.2020 till 14.03.2021 shall be treated as the period during which Courts were closed. This apart, the suit was filed for substantive reliefs and any default in the judgment in favour of