PATEL KANTILAL JETHABHAI Vs. JAHUBEN JAGMALBHAI KANBI

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India challenging orders passed below Exh.72 dtd. 3/7/2018 as also below Exh.92, dtd. 27/9/2018 passed by Principal Senior Civil Judge, Deesa, District: Banaskanatha in Special Civil Suit No.3 of 2011 whereby an application preferred by the petitioners-defendants for opening the right of cross examining the plaintiffs as also staying the proceedings since High Court has passed the order to maintain status-quo in respect of suit property which came to be partly allowed permitting the petitioners-defendant to cross examine the plaintiffs imposing cost of Rs.3,000.00 and prayer for amendment of the written statement under Order VI Rule 17 of the Code of Civil Procedure, 1908, came to be rejected respectively.

(2.) Mr.N.K.Majmudar, learned advocate for the petitioners has submitted that so far as imposition of cost for opening right to cross examine the plaintiff is concerned, the examination in chief affidavit filed by the plaintiff was not served upon the defendants or their advocate and therefore, cost should not have been imposed while opening the right to cross examine the plaintiffs.

(3.) However, looking at the order, it is clear that the day on which examination in chief on oath filed by the plaintiff, he was present before the Court but learned advocate representing the defendants was not present and therefore, he could not be cross examined. In that view of the matter, the right to cross examine the plaintiff came to be struck out by the Court vide an order dtd. 17/6/2013 but since prayer for opening right to cross examine the witness came to be filed only on 14/9/2017 while permitting cross examination to be conducted, the learned trial Judge has rightly imposed the cost and as such, application came to be filed at a belated stage but permitting the valuable right to cross examination. Hence, I see no reason to interfere in the order passed below Exh.72 dtd. 3/7/2018 by the learned trial Judge.