Bharatkumar Chhotalal Mehta vs Sant Bharatdas Guru Shree Samram ...
2021 Latest Caselaw 18660 Guj

      C/SCA/10874/2018                               ORDER DATED: 22/12/2021



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
         R/SPECIAL CIVIL APPLICATION NO. 10874 of 2018
                              With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2018
        In R/SPECIAL CIVIL APPLICATION NO. 10874 of 2018
==========================================================
                   BHARATKUMAR CHHOTALAL MEHTA
                              Versus
            SANT BHARATDAS GURU SHREE SAMRAM MAHARAJ
==========================================================
Appearance:
MR BS NILAK(1673) for the Petitioner(s) No. 1
MS RATNA VORA(2251) for the Petitioner(s) No. 1
MR HARSHADRAY A DAVE(3461) for the Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
                  Date : 22/12/2021

ORAL ORDER

IN SCA-10874 OF 2018

1. By preferring this petition, petitioner has challenged the

order passed below Exh.36/1 dated 03.01.2018 by learned

Principal Senior Civil Judge, Vadodara giving liberty to

respondent/objector for cross-examination of petitioner and

producing evidence after 19 years and six months.

2. Heard learned advocates for the respective parties.

3. Learned advocate for petitioner has submitted that the

impugned order passed below Exh.36/1 dated 23.06.1998 to

reopen the rights of the respondent to cross-examine the

petitioner is clearly illegal and erroneous as the application

Exh.55 was given by respondent on 13.07.1998 to implead

him as party. It is further submitted that as

C/SCA/10874/2018 ORDER DATED: 22/12/2021

objector/respondent was there in the proceedings as objector,

such a permission cannot be granted after passing of 19 years

by the Court-below. It is further submitted that respondent

had also filed Special Civil Application No.2425 of 1999 to

quash and set aside the entire proceedings of probate

application which was dismissed by this Court. It is further

submitted that Civil Revision Application No.1351 of 1999 was

preferred against the order passed below Exh.55 was also

dismissed by the Court and application Exh.55 was remanded

back to the Trial Court for fresh hearing vide order dated

30.01.1999. It is further submitted that however, chief

examination of petitioner was submitted on 01.05.1997,

application to reopen the rights for cross-examination was

given at a very late stage on 23.06.1998. It is further

submitted that petitioner had filed closing pursis vide Exh.33

on 01.05.1997 and no prayer was made by respondent herein

to permit him to cross-examine petitioner. Hence, it is

requested by learned advocate for petitioner to quash and set

aside the impugned order dated 03.01.12018 passed below

Exh.36/1 permitting respondent herein to cross-examine

petitioner. In support of his arguments, learned advocate for

petitioner has relied upon the following judgments:

      C/SCA/10874/2018                          ORDER DATED: 22/12/2021



     (i)       Menashi Rajabhai Kathad Vs. State of Gujarat
               reported in 2017(2) GLR 1412;
     (ii)      Vadiraj Naggapa Vernekar (D) through Lrs. Vs.
               Sharad Chand Prabhakar Gogate reported in
               2009(4) SCC 410;
     (iii)     K.K. Velusamy Vs. N. Palanisamy reported in
               2011 (11) SCC 275;

4. From the other side, learned advocate appearing for

respondent has submitted that no illegally is committed by

learned Trial Court in granting permission to cross-examine

the petitioner as per the order passed below Exh.36/1 dated

03.01.2018. It is further submitted that in the probate

application preferred by petitioner, the present respondent

herein was not party. It is further submitted that as per the

order passed below Exh.55, on 25.09.1998, respondent herein

was permitted to participate in the proceedings and objections

preferred against respondent were ordered to be taken into

consideration. It is further submitted that against the order

passed below Exh.55 on 25.09.1998, the present petitioner

challenged the order before learned Extra Assistant Judge in

Civil Misc. Appeal No.430 of 1998. It is further submitted that

said Misc. Civil Appeal preferred by petitioner was not

considered on merits and the matter was remanded back to

the Trial Court for fresh hearing of application Exh.55 by

C/SCA/10874/2018 ORDER DATED: 22/12/2021

providing opportunity to the Santram Temple Trust if they so

chose vide order dated 30.01.1999. It is further submitted

that the said order was challenged by the present respondent

in Civil Revision Application No.1351 of 1999 before this

Court, wherein the order passed in Civil Misc. Appeal No.430

of 1999 by the Extra Assistant Judge, Vadodara was

confirmed and Revision Application was dismissed in limine. It

is further submitted that the Trial Court decided the

application Exh.55 afresh and vide order dated 08.08.2014,

application Exh.55 was partly allowed and objections taken by

respondent were ordered to be recorded and considered. It was

further ordered that objectors have right to take part in the

proceedings of probate application. It is further submitted that

respondent herein was never permitted to cross-examine the

petitioner as chief examination was filed on 01.05.1997. It is

further submitted that present petitioner was never party in

the probate application preferred by the present petitioner i.e.

Probate Application No.261 of 1996 and as per the order

passed below Exh.55, he was permitted to participate in the

probate application. The right to cross-examination of

petitioner was a material defence on the part of respondent

and it cannot be curtailed by the Court-below. It is further

C/SCA/10874/2018 ORDER DATED: 22/12/2021

submitted that as per the order passed below Exh.1 in Probate

Application No.261 of 1996, Probate Application was

converted into Regular Civil Suit vide order dated 03.01.2018.

Hence, it is requested by learned advocate for respondent to

dismiss the petition.

5. Having heard learned advocates for the respective parties

and material produced on record, it appears that Civil Misc.

Application No.261 of 1996 was preferred by present petitioner

to obtain probate of Will exhibited in favour of petitioner by

mother - Dayaben Chhotalal Mehta. Initially, probate

application was preferred by Dayaben Chhotalal Mehta and as

she died during the proceedings, present petitioner preferred

an application to permit him to join as party to the

proceedings, which was allowed and the issues were framed

by the Trial Court vide Exh.20 on 09.04.1997. On 01.05.1997,

affidavit in chief examination was preferred by the present

petitioner vide Exh.30. The matter was fixed on next day for

explanation of cross-examination by the Court-below. It

appears from the record that vide Exh.33 on the very same

day i.e. on 01.05.1997, closing pursis was filed by the

petitioner before the Court. There is nothing on record that

cross examination of petitioner was carried out by respondent

C/SCA/10874/2018 ORDER DATED: 22/12/2021

herein. No copy of Rojkam is produced on record by the

petitioner. It also appears from the record that the right to

cross examination of petitioner was never closed by the Court-

below. Admittedly, the present petitioner was not party in the

probate application preferred by petitioner before the Court-

below. On 13.07.1998, the respondent herein, who is the

objector of the probate application, preferred an application to

implead him as necessary party which was partly allowed by

learned 6th Joint Civil Judge (S.D.), Vadodara on 25.09.1998.

Against the said order, Civil Misc. Appeal No.430 of 1998 was

preferred before the District Court, Vadodara by present

petitioner, wherein learned Extra Assistant Judge, Vadodara

vide his order dated 30.01.1999 remanded the matter back to

the Trial Court to decide it as afresh by giving opportunity of

hearing to both the parties. Aggrieved by the impugned order

dated 30.01.1999, respondent herein preferred Civil Misc.

Application No.1351 of 1999 before this Court. On

15.03.1999. This Court was pleased to dismiss the Revision

Application preferred by respondent in limine and confirmed

the order of learned Trial Court vide order dated 15.10.1999.

During the pedency of Civil Revision Application No.1351 of

1999, respondent herein filed another proceedings being

C/SCA/10874/2018 ORDER DATED: 22/12/2021

Special Civil Application No.2425 of 1999 on 05.04.1999 with

a prayer to quash and set aside the entire proceedings of the

Probate Application No.261 of 1996. Said Special Civil

Application No.2425 of 1999 was dismissed by this Court on

16.08.1999. Application Exh.36/1 was filed on 23.06.1998 to

reopen his right to cross-examine the petitioner. The

impugned order was passed on 03.01.2018 to reopen the right

of the respondent to cross-examine petitioner. Thereafter, it

appears that as per the order passed below Exh.1 on

03.01.2018, considering the dispute pending between the

parties, for proper adjudication, Court-below converted the

probate application into Regular Civil Suit. There is no

submission from the petitioner that why the order passed

below Exh.1 is erroneous or illegal. From the record, it

appears that there was never cross examination of the

petitioner carried out by respondent herein. After filing an

affidavit on 01.05.1997. Application Exh.36/1 was submitted

by respondent herein on 23.06.1998, which was ultimately

decided on 03.01.2018. Between two these periods, certain

litigations were initiated by petitioner or by respondent before

the Competent Court of law. There was no fault on the part of

respondent to give an application Exh.36/1 requesting to

C/SCA/10874/2018 ORDER DATED: 22/12/2021

permit him to cross-examine petitioner on 23.06.1998.

Petitioner, surprisingly, passed a pursis Exh.33 on the very

same day of closing his evidence without giving an opportunity

to respondent and was aware that no cross examination of

petitioner was carried out by respondent herein. It was not

necessary on the part of respondent to make prayer on the

very same day while closing pursis Exh.33 was preferred by

petitioner or to make any request to permit him to cross-

examination. It was the duty of the Court to see that

respondent herein was not permitted to cross-examine and

closing pursis was preferred by petitioner. The right to cross

examine is an essential right to arrive at a conclusion of the

trial and it cannot be curtailed by the Court. The judgment in

the case of Menashi Rajabhai Kathad Vs. State of Gujarat

(supra) relied upon by learned advocate for the petitioner is

based under Section 311 of the Code of Criminal Procedure,

1973 in respect of recalling of witness. Another judgment

relied upon by learned advocate for petitioner in the case of

K.K. Velusamy Vs. N. Palanisamy (supra) is relating to Order

18 Rule 17 of the CPC. It was observed by the Hon'ble Apex

Court that it is for Courts-below to consider whether it was

necessary to reopen the evidence and if so, in what manner

C/SCA/10874/2018 ORDER DATED: 22/12/2021

and to what extent further evidence should be permitted. In

the case of Vadiraj Naggapa Vernekar (D) through Lrs. Vs.

Sharad Chand Prabhakar Gogate (supra), it was in

connection with under Order 18 Rule 17 of the CPC, wherein

power of Court to recall and examine witness was discussed.

Here, in the instant case, there is no question of recalling the

present petitioner for examination by respondent as he was

never given an opportunity to cross examine the petitioner.

6. Under the circumstances, the Trial Court has not

committed any error in permitting respondent to cross

examine the petitioner or converting the probate application in

Regular Civil Suit considering the dispute pending between

the parties. Hence, this petition is hereby ordered to be

dismissed. Notice is discharged.

(B.N. KARIA, J)

ORAL ORDER IN CA-1 OF 2018

In view of the order passed by this Court in the main

matter, the present Civil Application does not survive and

accordingly, the same is dispose of.

(B.N. KARIA, J) rakesh/p