Balkrushna Marutirao Kanchani vs Prabhro Narayanrao Battul
2023 Latest Caselaw 6463 Guj

                                                                                        NEUTRAL CITATION




     C/SCA/1703/2020                                   JUDGMENT DATED: 04/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1703 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       BALKRUSHNA MARUTIRAO KANCHANI
                                   Versus
                         PRABHRO NARAYANRAO BATTUL
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Appearance:
RUSHI A BAROT(8993) for the Petitioner(s) No. 1,2
RULE SERVED for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                 Date : 04/09/2023

                                 ORAL JUDGMENT

1. Heard learned advocate Mr. Rushi Barot for the petitioners.

2. Though served, none remained present for the respondents.

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C/SCA/1703/2020 JUDGMENT DATED: 04/09/2023

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3. By way of this petition under Article 227 of the Constitution of India, the petitioners challenge order dated 5.12.2019 passed by the learned City Civil Judge, Court No.20, Ahmedabad below Exh.90 in Civil Suit No.639 of 2007, by which the learned trial Court refused to reopen the stage of cross- examination of the respondents - original defendants.

4. The parties to the present proceedings are referred to as per their original status before the learned Court below.

5. The plaintiffs have filed the suit for recovery of Rs.4,81,748/- with 18% interest from the due date till realization. Thereafter, the plaintiffs have reduced their claim to Rs.2,60,000/- from Rs.4,81,748/-. The plaintiffs have produced their evidence on form of Exh.35. The plaintiffs were cross- examined. Thereafter, as the turn of the defendants came, the original defendant No.1 filed examination-in-chief vide Exh.78 on 8.11.2017. A year later, on 18.1.2018, the learned Court below, since no one remained present to cross-examine the defendants, vide order passed below Exh.79 closed the rights of the plaintiffs for cross-examination. The defendants filed closing pursis at Exh.81 on 1.2.2018 and also filed written arguments at Exh.82. Meanwhile, the plaintiffs moved an application at Exh.90 for reopening of their right to cross-examine the defendants. However, said application. However, said application was rejected by the learned Court below inter alia on the ground that at earlier point of time, the plaintiffs had filed identical applications at Exhs.83 and 86.

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C/SCA/1703/2020 JUDGMENT DATED: 04/09/2023

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6. What appears from the impugned order that the learned Court below has taken a complete hyper-technical approach and by cryptic order, almost non-suited the plaintiffs. The cross- examination of the rival party is a substantial right. Of course, that substantial right has been affected by haphazard approach on the part of the plaintiffs, but yet, it is a valuable right and the Court cannot deny the plaintiffs to exercise such right. The learned Court below while passing such order, was required to take into consideration that by imposing certain costs and certain other conditions, the plaintiffs were required to allow to cross-examine the defendants. Therefore, illegality is arrived at the hands of the learned Court below denying the relief to the plaintiffs. The cryptic order being impugned herein does not survive.

7. Learned advocate Mr. Barot, in his utter fairness, submits that he is ready and willing to pay the cost.

8. Having considered the principles of natural justice, this Court is inclined to allow this petition.

9. In the result, present petition is allowed. The impugned order is hereby quashed and set aside provided that the plaintiffs shall deposit Rs.5000/- towards cost to be deposited to the District Legal Services Authority, City Civil Court, Ahmedabad within 07 days from today, and Rs.2500/- to the defendants with the condition that the plaintiffs shall cross-examine the defendants on the date they remain present before the learned Court below and further the date fixed by the learned Court below for cross-examination of the defendants. Rule is made

NEUTRAL CITATION

C/SCA/1703/2020 JUDGMENT DATED: 04/09/2023

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absolute to the aforesaid extent.

10. It is expected from the learned Court below to make an endevaour to decide and dispose of the suit pending before it sooner as possible.

(J. C. DOSHI,J) SHEKHAR P. BARVE