Rajasthan High Court - Jaipur
Sajjid Amir Khan vs Mr Anoop Bartaria And Ors on 9 November, 2016
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
ORDER
S.B. Civil Writ Petition No. 14894/2016
Sajjid Amir Khan S/o Sh. Amir Khan, aged about 55
years R/o 23/24, Sea Spring Co-operative Housing
Society, B.J. Road, Band Stand, Bandra, Mumbai-400 050
through Power of Attorney Holder Sh. Anoop Pandey .....
---Petitioner/Defendant No. 1
Versus
1. Mr. Anoop Bartaria S/o Sh. Virendra Bhartaria, R/o 61,
Jai Jawan Colony, Scheme No. 3, Tonk Road, Jaipur-
302012.
---Respondent/Plaintiff
2. Saif Khan S/o Sh. Sajid Khan R/o 23/24, Sea Spring
Co-operative Housing Society, B.J. Road, Band Stand,
Bandra, Mumbai-400 050.
3. Firdaus Khan W/o Shri Sajjid Amir Khan R/o
23/24,Sea Spring Co-operative Housing Society, B.J.
Road, Band Stand, Bandra, Mumbai-400 050(Since
Deceased).
4. Shehla Khan D/o Sajid Khan R/o 23/24, Sea Spring
Co-operative Housing Society, B.J. Road, Band Stand,
Bandra, Mumbai-400 050.
----Proforma Respondents/ Defendants
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5. RF Properties & Trading Ltd., Registered Address 215,
Laxmi Plaza, Laxmi Industrial Estate, New Link Road
Adheri, Mumbai, Corporate Office at 310-313, Gaurav
Tower, Malviya Nagar, Jaipur through authorized person.
(now known as World Trade Park Ltd.)
--Respondent/Defendant No. 5
Date of Order :: 09.11.2016
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Mr. Yadu Bhargavan with Mr. Sandeep Pathak)
Mr. Arun Jain, for the petitioner.
Mr. S.S. Hora)
Mr. S.N. Kumawat, for the respondents.
****** The petitioner/defendant is aggrieved of the order dated 6th October, 2016, closing his right to adduce evidence; and therefore, has instituted the present writ application.
Learned counsel for the petitioner, reiterating the pleaded facts and grounds of the writ application, referred to the order made by a Co-ordinate Bench of this Court in SBCWP No. 5724/2016, dated 22 nd August, 2016, wherein the petitioner was allowed to cross-examine the plaintiff/respondent imposing a cost of Rs. 10,000/-, with a further direction that the plaintiff/respondent would produce his entire evidence by availing of three opportunities and the respective defendant would also be accorded three opportunities to produce the entire evidence. 3
According to learned counsel, the order dated 22 nd August, 2016, was modified in S.B. Civil Misc. Application No. 365/2016, on 23rd September, 2016, allowing the petitioner/defendant to conclude the cross-examine of the respondent-plaintiff on 24th September, 2016. The cross- examination was concluded on 24th September, 2016.
It is urged that the trial Court, in a hyper technical manner, has declined the opportunity to the petitioner/defendant to adduce his evidence. Thus, declining the application dated 26th September, 2016, in an arbitrary and illegal manner, has resulted into miscarriage of justice.
Per contra: Mr. S.S. Hora, appearing for the respondent No. 1 and Mr. S.N. Kumawat, representing the respondent No. 5, while supporting the impugned order dated 6 th October, 2016, resisted the prayer for any further opportunity to the petitioner/defendant to adduce the evidence for the petitioner has been delaying the conclusion of the trial by institution of interim applications, which were/are irrelevant.
Learned counsel would further submit that the suit proceedings instituted in the year 2008, has been dragged on unnecessarily for almost eight years by institution of irrelevant applications.
I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as carefully considered the impugned order dated 6th October, 2016.
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Taking note of the delay, while allowing the petitioner/defendant, an opportunity to cross-examine the plaintiff/respondent, a Co-ordinate Bench of this Court vide order dated 22nd August, 2016, in SBCWP No. 5724/2016, observed thus:
"After hearing the learned counsel appearing for the parties, the present petition is, hereby, disposed of with the following directions :-
'A. That the petitioner No.1 on the next date of hearing shall positively conclude the cross- examination of the plaintiff-respondent No. 1.
B. That on the said date, the plaintiff- respondent No.1 shall remain present in person in the Court below and shall step into the witness-box.
C. That on the said date, cross-examination shall be positively concluded by ld. counsel appearing for the plaintiff/respondent No. 1.
The trial Court is further directed to give effect to the directions dated 20.11.2012 issued by Coordinate Bench of this Court. The trial Court shall proceed with the suit on day-to-day basis. The plaintiff-respondent is further directed to produce his entire evidence by availing three opportunities. Three opportunities will be granted to the respective defendant to produce the entire at their own risk and cost. Unnecessary adjournments given by the trial Court shall be viewed seriously by this Court.
Since the petitioner-defendant No.1 has delayed the culmination of the suit, a cost of Rs. 10,000/- is imposed upon him. The cost, so imposed shall be paid to the respondent-plaintiff on the next date.
Upon disposal of main petition, stay application, filed therewith does not survives and the same is also disposed of."
The order aforesaid was modified on 23 rd September, 2016, observing thus:
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"Can a frustrated litigant prolong the court proceedings and use the platform of the court by subjecting the witness to fishing and rowing inquiry in a fiercely contested litigation. A lengthy cross-examination has been conducted upon the plaintiff and the court remained a mute spectator, to allow all kinds of irrelevant questions. Still to unarm the petitioner from delaying the matter further by prolonging the litigation, respondent-plaintiff is directed to again step into witness box tomorrow i.e. 24.9.2016 for further cross-examination, as this court is informed that court is proceeding with the suit on day-to-day basis. Tomorrow itself the cross-examination of plaintiff shall be concluded. With the observations made above and direction issued the present modification application is disposed off."
Indisputably, the cross-examination of the respondent- plaintiff was concluded on on 24 th September, 2016. But the trial Court still declined opportunity to adduce evidence vide impugned order, to the petitioner.
In the singular facts and circumstances of the case, the trial Court was directed to proceed with the suit on day-to-day basis, and the matter is being proceeded with accordingly.
Depriving the petitioner/defendant to adduce evidence would be too technical an approach and would cause injustice to the petitioner. The delay, caused can be compensated by real costs.
Accordingly, the petitioner is allowed to adduce his entire evidence availing of three opportunities, subject to payment of cost of Rs. 10, 000/- (Rupees Ten Thousand). The cost shall be paid to the respondent-plaintiff on the next date tomorrow i.e. 10th November, 2016.
The impugned order dated 6th October, 2016, is hereby 6 set aside With the observations and directions, as indicated above, the writ application as well as stay application stand disposed off.
(VEERENDR SINGH SIRADHANA), J.
Ashu/Jr. P.A/120