GOVINDBHAI MADHABHAI RABARI Vs. KHACHAR RAGHUBA JINABHAI

JUDGEMENT

(1.) Challenge in this petition under Article 227 of the Constitution of India is to the order dtd. 1/12/2016 passed by the Principal Civil Judge, Chuda, Surendranagar below Exh.371 in Regular Civil Suit No.30 of 1995 whereby the application made by the petitioners - defendants praying for reopening their right to cross examine the plaintiff came to be rejected.

(2.) Mr. Vicky Mehta, learned advocate for the petitioners, submitted that though the suit is of the year 1995 initially the plaintiffs did not remain present, and therefore, the suit could not be proceeded. He has further submitted that in absence of the advocate on the day fixed for cross examination of the plaintiff, right to cross examine the plaintiff came to be closed, and therefore, the petitioners - defendants, as litigants, may not be punished for the same and they may be given a chance to establish their defence by opening their right to cross examine the plaintiff. Drawing attention of the Court to the Rojkam produced with this petition, it is submitted that on 14/7/2016 though plaintiffs and the defendants were present, the advocate for the plaintiffs was not present, and therefore, their right to cross examine the plaintiff came to be closed, which is required to be reopened by imposing any condition.

(3.) Having heard the learned advocate for the petitioners as also going through the record of the impugned order, it appears that the defendants are not interested in proceeding with the suit by participating in it and they appear to be very lethargic. Examining the impugned order, it appears that examination-in-chief of the plaintiff came to be presented on 14/9/2012 and till 15/7/2014 defendants did not bother to cross examine the plaintiff, and therefore, the right to cross examine the plaintiff came to be closed on that day. Thereafter, as submitted by the learned advocate for the petitioners, right to cross examine the plaintiff came to be reopened and it was conducted in part on 3/2/2015 and the case was adjourned for further cross examination. Further from the record, it appears that after 3/2/2015, again the defendants disappeared to cross examine the plaintiff, and therefore, the Court was constrained to again close his right to cross examine the plaintiff vide order dtd. 14/7/2016. Thus, it appears that the defendants are not at all interested in proceeding with the suit and cross examine the plaintiff. Not only that, even their right to lead evidence also came to be closed vide order dtd. 23/9/2016 as reflected from the impugned order. Nearly two months thereafter, it appears that they have requested the Court vide application, Exh.371 praying for reopening their right to cross examine the plaintiff, which came to be rejected on the very same day. From the contents of the application, Exh.371, it appears that the petitioners - defendants are not interested in proceeding with the suit from the very beginning and they want to delay the proceedings as they did not pray for opening of their right to lead evidence in their application. No whisper is made about the order dtd. 23/9/2016 whereby right to lead the evidence of the petitioners - defendants came to be closed in the application, Exh.371 whereby they prayed for reopening of their right to cross examine the plaintiff.