Madhya Pradesh High Court
Mohanlal Agarwal vs Mahesh Chandra Agarwal on 5 January, 2016
1 Writ Petition No.7352/2015
(Mohanlal Agarwal vs. Mahesh Chandra Agarwal and others)
05/01/2016
Shri N.K. Gupta, Senior Advocate, assisted by Shri
Sanjay Sharma, Advocate for petitioner.
Shri V.K. Bhardwaj, Senior Advocate, assisted by
Shri Anvesh Jain, Advocate for respondents.
This writ petition under Article 227 of the Constitution of India is directed against the order dated 14/9/2015 by the defendant/tenant closing his right of cross-examination of plaintiffs.
Shri N.K. Gupta, learned senior counsel, contends that on the date fixed for cross-examination though the counsel for defendant/petitioner appeared and cross- examined the plaintiff, however, post-lunch he could not appear due to his appearance before another Court where already the date was fixed for cross-examination of witness of other case. However, sooner did he arrive in the Court at about 4:15 PM, by that time the trial court had closed the right of the defendant/petitioner to cross- examine the plaintiffs on the ground that the counsel was not available after lunch. It is submitted that a detailed application was filed explaining the facts and circumstances prevented him to appear post-lunch before the Court, however, the trial court oblivious of the 2 Writ Petition No.7352/2015 (Mohanlal Agarwal vs. Mahesh Chandra Agarwal and others) bonafide justification offered, had closed the right of cross-examination. Hence, the trial court has committed a grave illegality and jurisdictional error having denied the valuable right of cross-examination.
Per contra, Shri V.K. Bhardwaj, learned senior counsel for the respondents/landlord, contends that the conduct of the petitioner/defendant has not been above board in the matter of cooperation for expeditious disposal of the suit. It is contended that as many as nine opportunities, viz. on 3/3/2014, 10/4/2014, 27/11/2014, 23/1/2015, 24/2/2015, 12/3/2015, 11/4/2015, 19/6/2015 and 14/9/2015, have so far been afforded to the defendant/tenant for cross-examination. Though cross- examination was conducted, but in piece-mill and the same has stretched over a period of one year, as the affidavit under Order XVIII Rule 4 CPC was filed on 21/8/2013 and up-till 14/9/2015 the cross-examination was not completed. Such recourse of dilatory tactics of avoidance of completion of cross-examination has led to unreasonable delay in disposal of the eviction suit. Therefore, considering the conduct of the defendant/petitioner, no indulgence is warranted. Learned Senior Counsel relies upon the judgment of the 3 Writ Petition No.7352/2015 (Mohanlal Agarwal vs. Mahesh Chandra Agarwal and others) Supreme Court in the case of B.V. Smitha Rani vs. M.K. Girish, (2009) 17 SCC 660 to bolster his submissions.
In reply, Shri Gupta, learned senior counsel, contends that it is not correct that the counsel for defendant has avoided to complete the cross- examination and the order-sheets written on the aforesaid dates are self contained and explanatory to the effect that Court time was since over, therefore, there was deferment of dates for further cross-examination.
After hearing counsel for the parties, this Court is of the opinion that the eviction suits at the instance of senior citizens are required to be given priority. Unwarranted delay in completion of trial has all along been discouraged by this Court and also by the Apex Court. Undisputedly, examination-in-chief under Order XVIII Rule 4 CPC was submitted as far back as in the year 2013. Almost two years have passed by and till date the cross-examination is not complete. There is no dispute also that as many as nine dates have been fixed for cross-examination. True it is that on some dates due to paucity of time the cross-examination was spilled over to the next falling day, however, such protracted cross- examination in such matters certainly led to 4 Writ Petition No.7352/2015 (Mohanlal Agarwal vs. Mahesh Chandra Agarwal and others) unreasonable delay in disposal of the suit. Hence, in the opinion of this Court, the trial court has not committed jurisdictional error having closed the right of cross- examination under these facts and circumstances. However, looking to the fact that learned senior counsel for the petitioner/defendant prays for one last opportunity to complete the cross-examination, bearing in mind the concept of justice, equity and good conscience and that the petitioner/defendant shall abide by such terms and conditions this Court may impose, though the aforesaid prayer is vehemently opposed by learned senior counsel for respondents/landlord, however, to meet the ends of justice, one opportunity is given to the petitioner/defendant to complete the cross-examination of the plaintiffs on the next date fixed by the trial court, however, subject to payment of cost of Rs.7,500/-. The trial court shall endeavour to decide the suit as early as possible preferably within a period of nine months.
With the aforesaid, writ petition stands disposed of.
(Rohit Arya) Judge Arun*