[2025:RJ-JD:30656]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 12994/2025

1. Shanta Devi W/o Shri Ramesh Chand Tamboli, Aged About 50 Years, R/o Kotdi, Tehsil Kotdi, District Bhilwara, Rajasthan.

2. Rafiq Mohammad S/o Shri Abdul Latif, Aged About 54 Years, R/o Kotdi, Tehsil Kotdi, District Bhilwara, Rajasthan.

3. Kailash Chand Regar S/o Shri Bhajja Regar, Aged About

41 Years, R/o Hamiwas, Tehsil Kotdi, District Bhilwara, Rajasthan.

----Petitioners Versus Dhiman Kumar S/o Shri Balai Chand Bakshi, Aged About 60 Years, R/o Kotdi, Tehsil Kotdi, District Bhilwara, Rajasthan.

----Respondent For Petitioner(s) : Mr. Pankaj Choudhary.

For Respondent(s) :

HON'BLE MR. JUSTICE ARUN MONGA

Order (Oral)

14/07/2025

1. Petitioners (defendants) herein, inter-alia, seek quashing of the impugned order dated 13.05.2025 (Annex.-1) passed by learned Civil Judge & Judicial Magistrate, Kotri, District Bhilwara in Case No.32/2015, vide which his application under Section 151 CPC to cross-examine the plaintiff (respondent) was dismissed.

2. The plaintiff (respondent) filed a civil suit seeking permanent injunction and prescriptive order against the defendants (petitioners). The matter is currently pending before the trial court at the stage of the plaintiff’s evidence.

2.1. The petitioners (defendants) filed an application under Section 151 of the CPC, and the hearing was scheduled for plaintiff’s evidence on 21.04.2025. However, on the fateful day, learned counsel for the petitioners was unable to cross-examine the plaintiff (respondent) due to the sudden illness of his wife, for which he also submitted an application. However, the application under Section 151 CPC was dismissed. Hence, this petition.

3. For ease of reference, English translation (as provided) of the impugned order dated 13.05.2025 is as below:

“By this order, the application dated 09.04.2025 filed on behalf of the defendants under Section 151 of the Code of Civil Procedure is being disposed of.Arguments on the application have been heard from both parties.

During the course of arguments, the learned counsel for the defendants, by reiterating the facts stated in their application, mainly advanced the argument that the matter is fixed for the plaintiff’s evidence on 21.04.2025, and on 25.03.2025, due to the sudden illness of the counsel’s wife, the counsel received an urgent call to return from Kotri to Bhilwara to attend to her. Therefore, the counsel prayed before the Court for an opportunity to cross-examine but had to leave immediately to Bhilwara to take care of his wife. Subsequently, the Court, considering that the case is old and in compliance with the directions of the Hon’ble High Court, closed the opportunity for the defendants to cross-examine the plaintiff, who is the main witness in the present case. It was argued that this suit relates to property, and the rights of the parties are to be determined herein. Earlier, the witness did not appear before the Court, and after the Court had granted several opportunities over a long period, the witness finally appeared. However, due to the sudden illness of the counsel’s wife, the counsel had to leave urgently. In these circumstances, it has been prayed that the defendants be given another opportunity to cross-examine the plaintiff in the interest of justice.

On the other hand, the learned counsel for the plaintiff, by reiterating the facts stated in the reply to the application, mainly argued that the counsel for the defendants has not submitted any medical document in support of his submissions. The plaintiff’s affidavit was filed on 10.01.2018, and thereafter the witness appeared before the Court on nine occasions; yet, despite this, the defendants did not cross-examine the witness, due to which the witness is being unnecessarily harassed. It was further argued that the case is old, and that the defendants have deliberately filed the present application with the intention of delaying the proceedings, which is