Tripura High Court
Rajesh Chakraborty vs Parimal Kanti Deb Roy on 11 July, 2018
Author: S. Talapatra
Bench: S. Talapatra
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HIGH COURT OF TRIPURA
AGARTALA
CRP No.39 of 2018
Rajesh Chakraborty
----Petitioner(s)
Versus
Parimal Kanti Deb Roy
----Respondent(s)
For Petitioner(s) :Mr. S. Lodh, Adv.
For Respondent(s) :Mr. K. Nath, Adv.
HON'BLE MR. JUSTICE S. TALAPATRA
Order
11/07/2018
Heard Mr. S. Lodh, learned counsel appearing for the petitioner as well as Mr. K. Nath, learned counsel appearing for the respondent.
This is an application under Article 227 of the Constitution of India challenging the order dated 06.11.2017 passed in TS No.12/2016 by the Civil Judge, Senior Division, West Tripura, Agartala, Court No.2.
For disposal of this petition, details of the facts leading to this challenge may not be essential inasmuch as there is no dispute that the plaintiff-petitioner instituted a suit for specific performance of the contract entered on 03.08.2015 being TS No.12/2016 but in terms of the agreement, despite the earnest money was paid and the plaintiff-petitioner had readiness to pay the remainder of the consideration, the defendant-respondent did not execute the sale deed in deviation thereof.
The suit proceeded to the stage of hearing and the plaintiff- petitioner filed the examination-in-chief under Order XVIII Rule 4 Page 2 of 3 of the CPC thereafter, several dates were fixed for cross- examination viz., 30.06.2017, 01.08.2017 & 01.09.2017.
The date, 06.11.2017, was fixed for cross-examination. But when the matter was called out, the plaintiff-petitioner was not found in the court to be cross-examined. As consequence thereof, the Civil Judge, Senior Division, Court No.1 passed the impugned order dated 06.11.2017 by closing the cross- examination of the plaintiff-petitioner and fixed the next date for examination-in-chief of the defendant's witnesses. Being aggrieved by that order, the present application has been filed.
Mr. S. Lodh, learned counsel has submitted that the plaintiff-petitioner filed the memo of appearance before the Court but at the time when the matter was called out, he was not there and he went out to attend nature's call.
Mr. K. Nath, learned counsel appearing for the defendant- respondent has submitted that the plaintiff-petitioner was not at all present in the proceeding and this plea has been taken just to drag the proceeding further.
Be that as it may, this Court having its hands on the records, is of the view that there is no infirmity in the impugned order dated 06.11.2017 but having regard to the substantive ends justice and having interpreted the provisions of Order XVII Rule 1, CPC as directive, a final opportunity be provided to the plaintiff-petitioner.
Hence the plaintiff-petitioner be allowed to be cross- examined by the defendant-respondent. The plaintiff-petitioner shall be present on the next date of the proceeding without fail and be cross-examined.
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If other witnesses for the plaintiff have filed the examination-in-chief they may be also be allowed to be cross- examined on the same date. It is made clear that if the plaintiff- petitioner or his witnesses fail to appear on the said appointed date for purpose of facing the cross-examination, no further opportunity will be provided to them.
This order is made subject to payment of Rs.1,000/- to the defendant-respondent on the next date.
In terms of the above, this petition stands allowed to the extent as indicated above and the impugned order stands modified accordingly. No order as to costs.
JUDGE satabdi