Chiranji Lal vs Civil Judge J D And Ors
2022 Latest Caselaw 4776 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                S.B. Civil Writ Petition No.12106/2012

Chiranji Lal Son of Shri Narayan Lal, Resident of Tambey Ki Tori,
Karauli, Tehsil and District Karauli Since Deceased through his
legal heirs:-
1. Ramswaroop Sharma son of Late Chiranji Lal Sharma,
2. Mahesh Sharma son of Late Chiranji Lal Sharma,
3. Suresh Sharma son of Late Chiranji Lal Sharma,
4. Dinesh Sharma son of Late Chiranji Lal Sharma,
All residents of Tambe Ki Tori, Karauli, Tehsil and District Karauli
(Rajasthan).
5. Suraj Devi wife of Rambharosi Daughter of Late Chiranji Lal.
6. Uma Devi wife of Deendayal Daughter of Late Chiranji Lal,
Both resident of Chobe Pada, Karauli, Tehsil and District Karauli
(Rajasthan)
                                                     ----Defendants/Petitioners
                                      Versus
1.     Civil Judge (Junior Division) Cum Judicial Magistrate, Ist
       Class, Karauli, District Karauli Rajasthan.
2.     Firm Jhumar Lal Swaroop Lal Tiwari, Contractor Owner
       Pradhuman Kumar Son of Govind Narayan, Savitri Devi
       wife of Arun Kumar Tiwari, Resident of Jaipur, presently
       resident of Tehsil and District Karauli (Rajasthan)
3.     Dwarka Prasad Son of Bhagwant Lal, Resident of Sasedi
       Tehsil And District Karauli Rajasthan Presently Resident Of
       Old Truck Union Karauli, District Karauli Rajasthan,
       presently resident of Old Truck Union, Karauli, District
       Karauli (Rajasthan) since deceased through his legal
       heirs:-
3/1    Purshottam son of Late Dwarka Prasad (since deceased)
3/2    Kumher Bhardwaj son of Late Dwarka Prasad, aged about
       61 years,
3/3    Dharmendra Kumar son of Late Dwarka Prasad, aged
       about 53 years,
       All resident of Gram Sasedi, Tehsil Karauli, presently
       resident of Ambedkar Circle, Baggi Khana, Tamoliyon Ka
       Mandir, Karauli, District Karauli.
3/4    Bhagwati wife of Gopal Lal Sharma, daughter of Late
       Dwarka Prasad, aged about 66 years, resident of Village
       and      Post     Atewa,        Tehsil      Sapotra,        District   Karauli

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        (Rajasthan).
3/5     Smt.Dropadi wife of Devi Charan daughter of Late Dwarka
        Prasad, resident of Village Kajanipur, Panchayat Patoda,
        Tehsil Hindaun, District Karauli (Rajathan)
                                                ----Plaintiffs- Non-Petitioners


For Petitioner(s)          :     Mr.Rajneesh Gupta, Adv. with
                                 Mr.Rahul Sharma, Adv.
For Respondent(s)          :     Mr.Sanjog Kamal Sharma, Adv.

Mr.Mukesh Kumar Goyal, Adv.

Mr.Sorabh Purohit, Adv.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

13/07/2022

This writ petition has been filed by the petitioners-

defendants challenging the order dated 26.07.2022, whereby an

application filed by the petitioners to cross-examine one witness-

Pradyuman Kumar produced by plaintiff has been rejected.

Learned counsel for the petitioners submitted that the

petitioners were defendants in the suit filed by the plaintiff and

written statement was filed by the petitioners and counter-claim

was also made in the written statement.

Learned counsel submitted that while the co-defendant was

permitted to cross-examine witness-Pradyuman Kumar, the same

right was denied to the petitioners.

Learned counsel submitted that witness-Pradyuman Kumar

had not given the correct version of agreement in his statement,

which was executed between the parties and as such it had

become necessary to cross-examine the said witness.

Learned counsel submitted that the other co-defendant has

filed a separate written statement and as such, if stand of the

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petitioners as co-defendant is different than the other co-

defendant, in normal course, the right to cross-examine such

witness ought to have been given to the petitioners as well, by the

Court below.

Learned counsel appearing for the respondent-Mr.Sanjog

Kamal Sharma submitted that the Court below has not committed

any error in passing the order.

Learned counsel submitted that bare perusal of the

application filed by the petitioners to cross-examine the said

witness does not mention a single reason as why cross

examination of witness was necessary.

Learned counsel further submitted that in the statement,

which has been recorded of the witness, he nowhere alleges

anything against the interest of the present petitioners and in fact,

there has been admission on the part of the said witness and as

such, no right should be given to the petitioners to cross-examine

the said witness.

Learned counsel for the respondents also places reliance on

the judgment passed by the Apex Court in the case of

Travancore Devaswom Board Vs. Thanath International

reported in [(2004)13 SCC 44].

Learned counsel for the respondents on the strength of the

said judgment submitted that the Court below, without

considering the necessity of examining the witness, should not

permit such practice.

Learned counsel for the respondents further submitted that

the witness in question-Pradyuman Kumar is about 81 years of

age and his medical condition is also not good and as such, it will

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be total harassment of such witness to be examined, at this

juncture.

I have heard the submissions made by learned counsel for

the parties and perused the material available on record.

This Court finds that the present petitioners had filed their

separate written statement and further they have also made a

counter claim and a reference of agreement has been made

therein.

This Court further finds that in the cross examination of the

witness, he said certain things about the agreement to sale on

which the present petitioners places reliance.

This Court further finds that the other co-defendants has

filed separate written statement and they have taken a different

plea in respect of claim of the petitioners.

This Court finds that the written statement filed by the

petitioners with their counter claim necessarily requires that the

evidence is required to be produced and if any witness has been

examined from the plaintiff's side and right of cross-examination

has been given to the other co-defendant, the same right is also

required to be afforded to the petitioners-defendants.

The submission of learned counsel for the respondents that

the witness has not stated anything against interest of the

petitioners, this Court at this stage would not like to observe

anything about such admission or denial and it is for the

appropriate Court to consider as in what manner, evidence has to

be considered.

The submission of learned counsel for the respondents that

cross-examination of the witness is not warranted, as witness is a

very old person of more than 80 years of age, this Court finds that

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if the witness cannot be cross-examined in a normal manner, the

Court below has full powers to examine the said witness by the

Appointing Commissioner.

This Court, accordingly finds that the order dated 26.07.2012

is not legally sustainable of not permitting the petitioners to cross-

examine the witness.

This Court accordingly directs the Court below to permit the

petitioners to cross-examine the witness-Pradyuman Kumar,

considering the physical condition of such witness and if he is not

able to come to the Court, the appropriate method to cross-

examine as permitted under the law, may be adopted.

Accordingly, the present writ petition stands disposed of.

(ASHOK KUMAR GAUR), J

Monika/22

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