Rajasthan High Court - Jodhpur
Smt. Jubeda vs Chand Khan & Anr on 15 December, 2016
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
S.B.CIVIL WRIT NO. 11294 / 2015
SMT. JUBEDA W/o Amin Khan, by caste Muslim, r/o Plot No.69
B Sindhi Muslim Colony, Masuriya Extension, Jodhpur (Raj.)
----Petitioner
Versus
1. CHAND KHAN S/o Rahmat Khan by caste Muslim, r/o Sindhi
Muslim Colony, Masuriya Extension, Jodhpur (Raj.).
2. Ugma W/o Ishaq Khan by caste Muslim, R/o Plot No.68
Sindhi Muslim Colony, Masuriya Extension, Jodhpur (Raj.)
----Respondents
__________________________________________
For Petitioners : Mr. Jitendra Chopra
For Respondents : Mr. Moti Singh
Mr. Chandra Shekhar Sihag
__________________________________________
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment 15/12/2016
1. This writ petition under Article 227 of the Constitution of India has been preferred to challenge the order dated 3.9.2015 passed by Civil Judge (S.D.) No.5, Jodhpur whereby the application filed by the petitioner/defendant under Section 151 CPC for recalling the order of closing the opportunity to cross-examine the plaintiff has been rejected.
2. Learned counsel for the petitioner/defendant has argued (2 of 9 ) [CW-11294/2015] that on 08.01.2015, counsel for the petitioner/defendant was busy in arguments before this Court in SB Civil First Appeal No.469/2009, hence he could not attend the matter pending before the learned trial Court and was unable to cross-examine the plaintiff. An application was also filed on the above said ground to adjourn the matter and to fix up some date of Saturday but the opportunity to cross-examine the plaintiff was closed on that date. Thereafter, he filed an application on 12.2.2015 (Annex.8) along with the affidavit of the concerned counsel to recall the order dated 08.01.2015 and to allow the opportunity to cross-examine the plaintiff. The said application was rejected by learned trial Court vide order impugned dated 03.09.2015. Learned counsel has submitted that though the matter was adjourned for cross-examination of the plaintiff on the earlier dates but the adjournment was not granted at behest of the petitioner/defendant but for other reasons including the Presiding Officer remaining on leave and the advocates boycotting the judicial work etc. He has submitted that on 18.10.2014, one opportunity was of course granted to cross-examine the plaintiff at the cost of Rs.500/- on the prayer made by counsel for the petitioner/defendant. Thereafter on the next date i.e. 20.12.2014, the Presiding Officer was on leave and on the next date fixed i.e. 8.1.2015, opportunity for cross-examination of the plaintiff was closed. He has submitted that learned trial Court, while ignoring these factual aspects has rejected the application for recalling the said order dated 08.01.2015 vide order impugned dated 03.09.2015. He has, (3 of 9 ) [CW-11294/2015] thus, prayed that in the interest of justice, opportunity to cross- examine the plaintiff may kindly be allowed as the cross- examination of plaintiff on behalf of defendant No.2 is still continuing.
3. Per contra, learned counsel for the respondents plaintiffs has vehemently opposed the prayer. He has submitted that affidavit of plaintiff Chand Khan was submitted on 01.11.2012. Thereafter, the petitioner/defendant No.1 went on to file applications one after the other just to prolong the proceedings, which came to be rejected by learned trial Court on various dates of hearing. The petitioner anyhow continued to prolong the proceedings by filing revisions before Hon'ble High Court. Lastly, the cross-examination of the plaintiff commenced on 17.5.2014 and detailed cross-examination was done on behalf of petitioner/defendant but that also remained inconclusive. On 18.10.2014 though the plaintiff remained present before the Court since 11 a.m. but on the prayer made on behalf of petitioner/defendant, one more opportunity to cross-examine the plaintiff was granted to the petitioner/defendant at the cost of Rs.500/-. He has also submitted that again on 08.01.2015, counsel for defendant No.1, by filing an application, prayed for adjourning the matter to cross-examine the plaintiff. The prayer was rejected and the cross-examination was closed. When the application to recall the said order and to reopen the cross-examination was filed by petitioner, it was rightly rejected (4 of 9 ) [CW-11294/2015] by learned trial Court vide order impugned while mentioning about the various opportunities which had earlier been sought by the defendant No.1 and granted to him.
4. Learned counsel for the respondent has submitted that learned trial Court has properly exercised its jurisdiction while passing the order impugned and no occasion exists to interfere in that order while exercising supervisory jurisdiction under Article 227 of the Constitution of India. In this regard, he has also referred the judgments rendered by Hon'ble Supreme Court.
5. On perusal of the impugned order, it is apparently clear that learned trial Court has mentioned that the affidavit sworn in by the plaintiff Chand Khan was filed on 01.11.2012. Despite affording so many opportunities, no cross-examination was made on that affidavit. On 18.01.2013, the application filed by the defendant under Section 151 CPC came to be rejected. One more application was filed by defendant, which was also dismissed on 24.1.2013 and the defendant was directed to cross-examine the plaintiff positively. Despite giving many opportunities, again one more opportunity on 5.4.2013 was granted for cross-examination while rejecting the objections raised by defendant. Again one application came to be filed by the defendant, which was also rejected on 31.05.2013 with the direction to the defendant to positively cross-examine the (5 of 9 ) [CW-11294/2015] plaintiff, else the same will be closed. Despite that no cross- examination was done. Again an opportunity on 04.09.2013 was granted to the defendant but no cross-examination was done. On 18.10.2014, the plaintiff was present for the cross- examination since morning but counsel for the defendant prayed for time and the same was granted at the cost of Rs.500/-. Ultimately, the cross-examination was closed on 08.01.2015.
6. While mentioning this history of so many opportunities having being granted to the defendant, learned trial Court has observed that more than adequate opportunities were granted to the defendant for cross-examination of plaintiff but in vein. It was also observed that recalling the order dated 08.01.2015 and further giving the opportunity to cross-examination will certainly amount to abuse of judicial process and will hamper the quick dispensation of justice. In these facts and circumstances, the application filed by the petitioner defendant came to be rejected.
7. Learned counsel for the petitioner has relied upon the judgment rendered by Hon'ble Supreme Court in case of Amrit Lal Kapoor & Anr. Vs. Kusum Lata Kapoor & Ors., reported in 2010 (3) CCC 272 (SC). In this matter the witnesses could not be produced, not because of any deliberate neglect or inaction, but on account of refusal of casual and (6 of 9 ) [CW-11294/2015] station leave prayed for by him, who was a government servant. In these circumstances, opportunity was granted to examine the said witness but the circumstances in the matter in hand are altogether different. He has also placed reliance upon the judgment in case of Kishore Singh Vs. Karam Chand, reported in 2013 (1) CCC 173 (H.P.) wherein in the interest of justice, the order allowing the application for granting an opportunity to cross examine some witnesses was not interfered with. Thus, the discretion exercised by the Court below was not interfered with. This is also not the case here. So, this judgment does not render any support to the petitioner.
8. In case of State Bank of India Vs. M/s. Aman Tex Fabrics & Ors., reported in 2007 (4) CCC 777 (P&H) cited by learned counsel for the petitioner, though no infirmity was found in the order closing evidence after granting last opportunity. However, in the interest of justice, one more opportunity was allowed by the Apex Court to produce the entire evidence.
9. It is clear that this latitude was granted to the petitioner in the facts and circumstances of those particular cases, which can be of no universal application.
10. Another judgment relied upon by learned counsel for the petitioner in case of Kewal Krishan Vs. Harnek Singh (7 of 9 ) [CW-11294/2015] (Dead) By LRs., reported in 2001 (9) SCC 117 is also similar in nature wherein one more opportunity to lead evidence at the cost of Rs.500/- was granted in the facts and circumstances of that case.
11. Learned counsel for the petitioner has also relied upon the judgment in case of State Bank of India Vs. Chandra Govindji (KM), reported in (2000) 8 SCC 532 wherein Hon'ble Supreme Court has observed that the adjournments granted earlier cannot be considered as a material fact as those would have certainly been granted for the reasonable grounds existing at that point of time. It has been observed that genuineness of the reasons for seeking adjournment on that particular date should be the material fact to be considered while deciding about the prayer for adjournment.
12. Learned counsel for the petitioner submitted that on 08.01.2015, he could not make himself available for cross- examining the plaintiff being busy in some other case before the High Court, so, the order closing the said opportunity was required to be recalled. But learned trial Court has also dealt with this aspect in the impugned order. It has been mentioned that as per the provisions contained in Order 17 Rule 1 CPC, more than three adjournments cannot be granted unless the circumstances are beyond the control of the party. It has also been mentioned that the advocate remaining busy in some (8 of 9 ) [CW-11294/2015] other Court is not a ground to adjourn the matter. The observations made by learned trial Court appear to be perfectly valid in view of the proviso (d) to Rule 1 (2) of Order 17 CPC. Thus, the contentions raised by learned counsel for the petitioner do not justify any interference to be made in the order impugned on this count also.
13. Learned counsel for the respondents has relied upon the judgment rendered by Hon'ble Supreme Court in Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil, reported in 2010 DNJ (SC) 781. He has also relied upon the judgment rendered in case of Kokkanda B. Poondacha & Ors., Vs. K.D. Ganapathi & Anr., reported in 2011 DNJ (SC) 429, which has been rendered while relying upon the judgment in case of Shalini Shyam Shetty (supra). In the said judgment, the Hon'ble Supreme has observed and propounded the principles, which are to be taken into consideration while exercising the jurisdiction under Article 227 of the Constitution of India. Relevant part whereof can be reproduced as below :
"Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual (9 of 9 ) [CW-11294/2015] cases but should be directed for promotion of public confidence in the administration in the larger public interest whereas Article 226 is meant for protection of individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline."
14. If the impugned order is scrutinized on the touch stone of the principles propounded by Hon'ble Apex Court in aforesaid judgment, it is obvious that no such circumstance exists for which it can be assumed that the trial Court has exceeded its jurisdiction or has not properly exercised the same, which may warrant exercise of supervisory jurisdiction. In the facts and circumstances of the case in hand, there was no justification for the trial Court to allow the application filed by the petitioner defendant under Article 151 CPC. Thus, the order impugned rejecting the same is perfect.
15. In view of above, the petition filed under Article 227 of the Constitution of India is bereft of any merit and deserves to be dismissed. Thus, the petition is accordingly dismissed.
(DEEPAK MAHESHWARI), J.
Arun/PS