Madhya Pradesh High Court
Shakeel vs Smt Jamila on 15 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:863
1 MP-4274-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 15th OF JANUARY, 2025
MISC. PETITION No. 4274 of 2024
SHAKEEL AND OTHERS
Versus
SMT JAMILA AND OTHERS
Appearance:
Shri Tara Chandra Narvaria - Advocate for the petitioner.
Shri Pratip Visoriya - Advocate for the respondent [R-1].
Shri Gopal Prasad Chourasia - Advocate for the respondent [R-2].
ORDER
This petition under Article 227 of the Constitution of India has been
filed being aggrieved by the order dated 20.07.2024 passed by Civil Judge,
Junior Division Bhander, District Datia whereby application under Section
151 CPC to cross-examine co-defendant has been rejected.
Learned counsel for the petitioner submits that in the present case, the
defendant No.2 has colluded with the plaintiff and is showing hostile attitude
towards the defendants No.1 and 3. The plaintiff and defendant No. 2 had
moved an application for compromise under Order 23 Rule 3 CPC against
the interests of defendant No.1 and 3. Therefore, application under Section
151 CPC had been preferred by the petitioner on the ground that if any
evidence is led by the plaintiff and defendant No.2 against the interests of
defendant No.1 and 3, then opportunity of cross-examination may be
NEUTRAL CITATION NO. 2025:MPHC-GWL:863
2 MP-4274-2024
afforded to them. The said application was rejected by the learned trial Court
vide impugned order dated 20.07.2024. Hence, assailing the impugned order
dated 20.07.2024, the present petition has been filed. To bolster his
submissions, learned counsel for the petitioners has relied upon the judgment
of Coordinate Bench rendered in W.P. No. 10710/2017 (Akhilesh Singh Vs.
Krishan Bahadur Singh and Ors.) on 08.01.2020.
Per contra, learned counsel for the respondent No.1 supports the
impugned order by submitting that no illegality has been committed by
learned trial Court in passing the impugned order.
Heard learned counsel for the parties and perused the record.
From perusal of record, it appears that on earlier occassion respondent
No.1/plaintiff had preferred a civil suit for declaration and permanent
injunction against the petitioners and respondent No.2 which was decreed in
favour of the plaintiff. Against the said judgment and decree, the petitioners
preferred an appeal bearing No. 6/2022 which was allowed vide judgment
dated 05.03.2024 setting aside the judgment dated 16.03.2022 and the matter
was remanded back to the trial Court with direction that after considering the
will Ex.P-1 and oral evidence in this regard and entire evidence led by both
the parties, resolve the controversy of ownership and possession of the
disputed house. After remand, the plaintiff and the defendant No.2 moved an
application under Order 23 Rule 3 CPC for compromise, which is pending
adjudication. Simultaneously, the petitioners had preferred application under
Section 151 CPC for declaring the defendant No.2 as hostile and affording
opportunity to the petitioners to cross-examine the defendant No.2, which
NEUTRAL CITATION NO. 2025:MPHC-GWL:863
3 MP-4274-2024
was rejected by the impugned order. 20.07.2024.
From perusal of the order of remand dated 05.03.2024, it appears that
in the order of remand, no opportunity has been afforded to lead fresh
evidence, in such circumstances, there is no occasion for the parties to lead
fresh evidence. It is settled law that no evidence should be received against
one who had no opportunity of testing it by cross-examination. Therefore, if
any fresh evidence is received, the petitioners would have all the opportunity
for cross-examination. The denial of the opportunity
to cross examine would certainly in violation of principles of natural justice.
Consequently, in view of the order of remand dated 05.03.2024, no
case for interference is made out. Accordingly, present petition stands
dismissed. However, learned trial Court is directed that if any new evidence
is furnished, the opportunity shall be afforded to the petitioners to test it by
cross-examination.
(MILIND RAMESH PHADKE)
JUDGE
ojha
