B T ASHA KUMARI Vs. ABDUL MANAF

JUDGEMENT

(1.) This writ petition is filed seeking to set aside the order dated 31.01.2013 passed by the XXVIII Additional City Civil Judge, Bangalore in OS No. 25118/2010 wherein the trial Court has rejected the application filed by the petitioner under Order XVIII Rule 17 r/w Section 151 of Civil Procedure Code, 1908. It is contended by the petitioner who is defendant No. 3 in the suit that when the case was posted for cross-examination of P.W. 1, due to non-availability of certain documents, she could not cross-examine P.W. 1. It is also further submitted that due to sudden demise of one of her relative, she was unable to cross-examine P.W. 1, hence the application for recalling P.W. 1 was due to the aforesaid unavoidable circumstances.

(2.) Sri. Rahul Cariappa, learned Counsel for the respondent on the other hand submits that, now the matter is set down for arguments and for the last one year the proceedings have not been advanced due to filing of the applications by the petitioner and that though several opportunities were given to the petitioner, she has not availed of the opportunity given to her and now the evidence is closed and the matter is set down for disposal by hearing the arguments. Therefore, the trial Court has rightly rejected the application. Hence, he prays for dismissal of the writ petition.

(3.) I have perused the materials on record. Though the petitioner was absent before the Court when P.W. 1 was tendered for cross-examination, she has given sufficient reasons for not cross-examining P.W. 1. However, P.W. 1 requires to be compensated for his presence before the Court, when the petitioner did not cross-examine him though tendered for the same. In that view of the matter, I am of the opinion that the petition may be allowed with a direction to conduct the cross-examination of P.W. 1 by the petitioner within the restricted period of time and on payment of cost. Accordingly, the petition is allowed. The order dated 31.01.2013 passed by the XXVIII Additional City Civil Judge, Bangalore in OS No. 25118/2010 on an application filed under Order XVIII, Rule 17 r/w Section 151 of Civil Procedure Code, 1908 is hereby set aside. The petitioner is permitted to cross-examine P.W. 1 on payment of cost of Rs. 1,000/- including a sum of Rs. 200/- which is already imposed by the trial Court. The trial Court is directed to recall P.W. 1 and permit the petitioner to cross-examine P.W. 1 and complete the cross-examination of P.W. 1 on or before 30.11.2013. Since, the matter is posted for arguments, the trial Court is directed to dispose of the suit on or before 31.01.2014. The petitioner to pay the cost to the respondent on 07.11.2013 or immediately on the next adjourned date, as the case may be.