Madhya Pradesh High Court

Chandrashekhar vs Shri Naman Grah Nirman Sahakari ... on 2 May, 2022

Author: Amar Nath (Kesharwani)

                                 1

     IN THE HIGH COURT OF MADHYA PRADESH AT INDORE

                             BEFORE
           HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
                        ON THE 2nd May, 2022

                 MISC. PETITION No. 3478 of 2021

     Between:-
     CHANDRASHEKHAR S/O SHRI BABULAL SHRIVAS,
     AGED ABOUT 58 YEARS,
     OCCUPATION: BUSINESS 21 SUDAMA NAGAR, UJJAIN,
     (MADHYA PRADESH)
                                               .....PETITIONER
     (BY SHRI AJAY GUPTA, ADVOCATE)

     AND

     SHRI NAMAN GRAH NIRMAN SAHAKARI
     SANSTHA MARYA., UJJAIN THR. PRESIDENT SHAILESH
1. S/O SHRI RAMKRISHNA MEHTA BUSINESS COLONIZER
     S-5 SHIVAM PARISAR (MADHYA PRADESH)


     BHARAT S/O SHRI BABU LAL SHRIVAS
     R/O 22/1, SUDAMA NAGAR UJJAIN
2.
     (MADHYA PRADESH)


     AMARCHAND S/O CHADAMI LAL JI RAI
     R/O 95, SUDAMA NAGAR, UJJAIN
3.
     MADHYA PRADESH)


     HUKUMCHAND S/O CHADAMI LAL JI RAI
     R/O 95, SUDAMA NAGAR, UJJAIN
4.
     (MADHYA PRADESH)
                                     2

     GULABCHAND S/O PARMANAND JI CHAJLANI
     R/O EWS 332, SANDIPANI NAGAR UJJAIN
5.
     (MADHYA PRADESH)


     RAMCHARAN S/O SHRI SURAJ PRASAD JI ALIYA
     R/O 70, SUDAMA NAGAR UJJAIN
6.
     (MADHYA PRADESH)


     MAHESH KUMAR S/O SHRI KISHANCHANDRA JI TANNA
     R/O 22, MAHAKAL ROAD, UJJAIN
7.
     (MADHYA PRADESH)


     ANTARSINGH S/O DULE SINGH RANA
8. R/O 110, SUDAMA NAGAR, UJJAIN
     (MADHYA PRADESH)
                                                     .....RESPONDENTS

     (BY SHRI BALDEEP SINGH GANDHI, RESPONDENT NO.1)


      With the consent of the parties, the matter is finally heard and the
Court passed the following:

                                ORDER

This Misc. Petition under Article 227 of the Constitution of

India has been filed by the petitioner being aggrieved by the impugned

order dated 16.09.2021 passed by the Eighth District Judge, Ujjain (MP) in

Civil Suit No. RCS-A8/2001 whereby the application under Order 18 Rule

17 read with Section 151 of the CPC filed on behalf of the petitioner to

cross-examine Shailesh Mehta (PW-1), has been rejected.

2. The brief facts of the case are that respondent No.1/plaintiff has

filed the civil suit before the learned Trial Court for declaration of the

registered sale deed executed by respondent No.1/plaintiff in favour of

defendant No. 1 to 7 (respondent No. 2 to 8) and sale deed executed by the

defendant No. 1 to 7 in favour of petitioner/defendant No. 8 as null and void

and not binding on the respondent No.1/plaintiff and for possession.

3. After service, the petitioner and respondents No. 2 to 8

appeared before the Court below and submitted their written statement and

thereafter, issues were framed and subsequently, the case was fixed for

examination of witnesses. On 14.01.2019, the trial Court has fixed the time

one hour for cross-examination of PW-1. An application was filed by the

petitioner to recall the said order before the trial Court which was denied,

against that order M.P.No. 2333/2019 was filed before this Court. By order

dated 28.08.2019 (Annexure P/1), the petition has been dismissed by

observing as under :

"In view of the above, the examination-in-chief and cross-examination of PW-1 has been conducted on 14.01.2019. No direction can be given for further cross-examination by defendant No.8 unless witness is recalled by the Court's order. No case for interference is made out. Accordingly, the petition is dismissed."

4. Thereafter, petitioner has filed the application under Order 18

Rule 17 CPC (Annexure P/3) before the trial Court to recall the order. The

application was dismissed by the trial Court vide the impugned order

against which this present petition has been filed.

5. Learned counsel for the petitioner submits that the Court below

has committed grave error in passing the impugned order. The trial Court

has arbitrarily and illegally dismissed the application filed by the petitioner.

6. Learned counsel for respondent No.1/plaintiff has submitted

that the case was filed in the year 2013 and due to delaying tactics of the

petitioner, case has been pending since last 8 years and the trial Court has

given ample opportunities to the petitioner to cross-examine PW-1 but the

counsel for the petitioner appearing before the trial Court has not availed

the same and therefore the trial Court has fixed the time for the petitioner to

cross-examine PW-1. Hence, the impugned order passed by the trial Court

has no illegality or perversity and therefore, this present petition deserves to

be rejected. Learned counsel for the respondent No.1 has placed reliance

on the judgment rendered by the Supreme Court in case of Vadiraj

Naggappa Vernekar (Dead) vs. Sharadchandra Prabhakar Gogate;

(2009) 4 SCC 410 in support of his arguments.

7. I have heard learned counsel for the parties and perused the

annexures filed along with the petition. The relevant part of the impugned

order rejecting the application filed by the petitioner is reproduced below :

" vkns'k 18 fu;e 17 U;k;ky; dks l'kDr djrk gS fd U;k;ky; fdlh Hkh le; fdlh Hkh ,sls lk{kh dks ftldh iwoZ esa lk{; gks pwdh gS] iqu% cqyk ldrk gS vkSj mlls ,sls iz'u dj ldrk gS tSlk U;k;ky; mfpr le>sA Li"V gS fd mDr izko/kku U;k;ky; }kjk lk{kh ls mls iqu% vkgwr dj Lo;a iz'u iwNs tkus ls lacaf/kr gSA mDr izko/kku dk mi;ksx dksbZ i{kdkj vkxs ijh{k.k ;k izfrijh{k.k ds fy, ugh dj ldrk gSA vkosnu ds lkFk O;ogkj izfdz;k lafgrk dh /kkjk 151 dk Hkh mYys[k gS fdarq ewy izko/kku ftlds rgr vkosnu izLrqr gS mlds izdk'k esa /kkjk 151 dk iz;ksx dj izfroknh }kjk oknh lk{kh dks vkxs izfrijh{k.k gsrq vkgwr fd;k tkuk ftldk dksbZ fof'k"V vkSj ;qfDRk;qDRk vk/kkj vkosnu esa izLrqr ugh gS o ftlls lacaf/kr ;kfpdk iwoZ esa ekuuh; mPp U;k;ky; [k.MihB bankSj }kjk fujLr dh tk pqdh gSA vr,o vkosnu leqfpr fof/kd izko/kkuksa ds vk/kkj ij izLrqr uk gksus ls fujLr fd;k tkrk gSA ""

8. Order 18 Rule 17 of the Code of Civil Procedure provides that :

"The court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit."

9. A plain reading of Order 18 Rule 17 of the Code of Civil

Procedure, reveals that this provision empowers the Court to recall any

witness and call any question, which it thinks is necessary for arriving at a

decision of the case and is not intended to be used to fill up omissions in the

evidence of a witness who has already been examined, but the main purpose

of Order 18 Rule 17 is to enable the Court to clarify any doubts that may

have arisen during the course of his examination as held in the case of

Vadiraj (supra).

10. As per Annexure P/4, proper opportunity has been given to the

petitioner by the trial Court to cross examine PW-1 and PW-1 was cross-

examined by the counsel for the petitioner and on 14.01.2019 when the

cross-examination was going on at around 3:55 pm, counsel for the