Bombay High Court
Sau. Jijabai W/O Padmakar Mohod vs Sou. Vimal W/O Narayanrao Jichkar ... on 19 July, 2017
Bench: I.K. Jain
WP 6153.16.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6153 OF 2016
Sou. Jijabai w/o Padmakar Mohod,
Aged 52 years, Occ : Household,
R/o. Village Khedi Karyat,
Post-Kharsoli, Tahsil-Narkhed,
District-Nagpur. .. PETITIONER
.. VERSUS ..
1] Sou. Vimal w/o Narayanrao Jichkar,
Aged 58 years, Occ. Household,
R/o. Arjun Nagar, Katol,
Tahsil-Katol, District-Nagpur.
2] The Collector, Nagpur.
3] The Tahsildar,
Tah. Narkhed, District-Nagpur. .. RESPONDENTS
..........
Mrs. S.C. Deo, Advocate for Petitioner,
Shri P.S. Sadavarte, Advocate for Respondent No.1,
Shri A.M. Balpande, AGP for Respondent Nos.2 and 3.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : JULY 19, 2017.
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ORAL JUDGMENT
Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned counsel for parties.
2] The challenge in petition is to the order dated
17.6.2016 passed by learned 5th Joint Civil Judge, Senior
Division, Nagpur below Exh.54 in Regular Civil Suit
No.908/2009 thereby rejecting an application filed by
petitioner/defendant no.1 to set aside no cross order.
3] The facts giving rise to the petition may be stated
in brief as under :
(i) Respondent no.1 filed a suit for
declaration, injunction, partition and separate possession.
Petitioner appeared in suit and filed written statement.
Plaintiff submitted her affidavit in lieu of evidence and her
examination-in-chief was concluded on 16.3.2015. Since
defendant remained absent, case proceeded for cross-
examination of PW-1 Vimal by defendant. Thereafter, from
time to time suit was posted for cross-examination of PW-1.
On 21.1.2016, as defendant failed to cross-examine the
witness of plaintiff, no cross order came to be passed.
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(ii) On 17.3.2016, petitioner moved an
application for setting aside no cross order dated 21.1.2016.
Upon hearing the parties, application came to be rejected.
This order of rejection is assailed in present petition.
4] Vide order dated 19.10.2016, this court had
directed the trial court to permit the petitioner-defendant to
cross-examine the witnesses of plaintiff before arguments
are heard. The order was conditional and in case of failure
to cross-examine the witnesses of plaintiff, it was further
directed that trial court shall pass an order forfeiting the
right to cross-examine the witness by defendant no.1. The
learned counsel for petitioner vide pursis dated 3.5.2017 has
stated that the witness could not be cross-examined and the
matter is still pending for argument.
5] Heard Mrs. Deo, learned counsel for petitioner and
Shri Sadavarte, learned counsel for respondent no.1.
6] Mrs. Deo, learned counsel for petitioner submits
that defendant had assigned cogent and convincing reasons
due to which defendant was prevented from cross-
examining witness of plaintiff. According to learned counsel,
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without considering the reasons given in application in
proper perspective, an opportunity was denied and no cross
order was passed. The next submission is that defendant is
a poor lady and was unable to give information to her
counsel, as the mediator who expired, used to give her
instructions. It is submitted that defendant no.1, though
was vigilant, could not cross-examine the witness for the
reasons beyond control and in such circumstance impugned
order needs to be set aside.
7] Per contra, learned counsel for defendant no.1
seriously opposes the prayer and makes two fold
submissions, (i) considering the scope of Article 227 of the
Constitution of India, no interference is required in the
impugned order, as trial court has rightly exercised the
discretion after giving sufficient opportunities to petitioner
and (ii) delays in justice delivery system dent the efficacy of
judicial process. Learned counsel submitted that defendant
no.1 was not vigilant through out. The trial court suo motu
granted time and matter was adjourned many times, still
defendant no.1 failed to cross examine the witness. It is
submitted that no interference is warranted in the well
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reasoned order passed by the trial court. In support of
submissions, learned counsel placed reliance on the
following decisions :
(i) Shalini Shyam Shetty and another .vs.
Rajendra Shankar Patil,
[2010 (6) Mh.L.J. 661]
(ii) Shiv Cotex .vs. Tirgun Auto Plast Pvt.
Ltd. and others,
[2012 (2) Mh.L.J. 439]
(iii) Rajendrabhai Virjibhai Mavadia .vs.
State of Gujarat and others,
[2016 ALL MR (Cri) Journal 591]
8] It is not in dispute that suit is for declaration,
injunction, partition and possession between two sisters.
It is also a matter of record that since 16.3.2015 till
impugned order was passed on 21.1.2016, suit was being
adjourned from time to time for cross-examination of
witness examined by plaintiff. It is the contention of
defendant no.1 that matter was entrusted through mediator
Sahebrao Barde. The said mediator died in 2015. He used
to give information about proceedings to her but due to
death of mediator, she was unable to get the information
and unable to contact her counsel.
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9] True, witness was not cross-examined for about
ten months, after plaintiff concluded examination-in-chief of
PW-1 Vimal. From the order, it can be seen that from
25.9.2015 to 28.11.2015 court was vacant and, therefore,
the matter was adjourned. It is also evident from the order
that on two occasions suit was transferred to another court
and was again assigned to the same court.
10] In these circumstances, this court is of the view
that defendant no.1 shall not be condemned unheard and
opportunity to cross-examine witness of plaintiff needs to be
granted to her to avoid denial of justice.
11] In the light of the above, petition deserves to be
allowed. Hence, the following order :
ORDER
(i) Writ Petition No.6153 of 2016 is allowed, subject to
costs of Rs.1,000/-.
(ii) Impugned order dated 17.6.2016 passed by the
learned 5th Joint Civil Judge, Senior Division, Nagpur below
Exh.54 in Regular Civil Suit No.908/2009 is quashed and set
aside.
(iii) Rule is made absolute in terms of prayer clause (I).
(iv) No order to costs.
(Kum. Indira Jain, J.)
Gulande, PA
