HASAN Vs. JAFAR

JUDGEMENT

(1.) This petition by defendants No.5 to 10 in O.S. No.34/2016 on the file of the Senior Civil Judge, Yellapur, is directed against the impugned order dtd. 26/9/2018 passed on I.A. No.8 whereby the said application filed by the petitioners/defendants No.5 to 10 under Sec. 151 of the Code of Civil Procedure, 1908 seeking to strike down the cross-examination of P.W.1 by defendants No.2 to 4 was dismissed by the Trial Court.

(2.) The material on record discloses that respondent No.1-plaintiff instituted the aforesaid suit against the petitioners-defendants No.5 to 10 as well as respondents No.2 to 5-defendants No.1 to 4 for partition and separate possession of his alleged share in the suit schedule immoveable property. In the said suit, respondents No.3 and 5, who were arrayed as defendants No.2 and 4 filed written statement supporting the claim of the plaintiff. During the course of the trial, the plaintiff examined himself as P.W.1 and, in the first instance, he was cross-examined by defendants No.2 and 4. In this context, it is relevant to state that during the course of cross-examination of P.W.1, the learned counsel for the petitioners-defendants No.5 to 10 was present and did not oppose the said cross-examination of P.W.1 by the learned counsel for defendants No.2 and 4. However, subsequently, the petitioners filed the instant application seeking to strike off/down, the cross-examination of P.W.1 by defendants No.2 and 4 and the said application having been opposed by defendants No.2 and 4, the Trial Court proceeded to pass the impugned order rejecting I.A. No.8 by holding as under:

(3.) As can be seen from the impugned order, the Trial Court has come to the correct conclusion that the petitioners-defendants No.5 to 10 having been present during the cross-examination of P.W.1 by defendants No.2 and 4 and having requested time to cross-examine P.W.1, on completion of cross-examination of P.W. by defendants No.2 and 4, the petitioners-defendants No.5 to 10 were estopped, in law and fact, from resiling from their earlier stand/position and make a request to strike off/down the cross-examination of P.W.1 by defendants No.2 and 4 who themselves did not have any objection for the same. Under these circumstances, I am of the considered opinion that the impugned order passed by the Trial Court cannot be said to suffering from any illegality or infirmity nor can the same be said to have resulted in miscarriage of justice warranting interference by this court in the present petition. Accordingly, I do not find any merit in the petition and the same is hereby dismissed.