DORRIS SAMUEL CHRSTIAN Vs. HIMMATLAL KALIDAS KANANI

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India praying for the following reliefs:

(2.) Mr. Shailesh Raval, learned advocate for the petitioner - original defendant, submitted that an application Exh.56 was tendered on behalf of the petitioner - original defendant came to be rejected vide order dtd. 18/6/2019 recording that no one is present on behalf of the original defendant, which is contrary to what is recorded in the Rojkam, which is produced at page 9/A, which reflects that the original defendant is present as also original defendant is not present. It further records that on behalf of the original defendant there is a sick note, and therefore, he has submitted that this order is required to be interfered with.

(3.) Having heard the learned advocate for the petitioner - original defendant and going through the record and the impugned order annexed with the petition, it appears that the right of the original defendant to cross examine the original plaintiff and his witnesses came to be closed prior to the application made but exactly on what date that right came to be closed is not coming out from the documents produced or in the application Exh.56. The said application appears to have been filed on 1/5/2019 where under the trial Court directed the petitioner - original defendant to file affidavit in support of the claim made in the application itself for reopening his right to cross examination. However, since the petitioner - original defendant failed to obey that order and did not file any affidavit in support of the same, on 18/6/2019 vide order impugned the application praying for reopening right of cross examination came to be rejected. Though the said order reflects that on behalf of the original defendant no one is present and Rojkam reflects that there was a sick note on behalf of the petitioner - original defendant, it makes no difference as at the relevant time the said order was not challenged but on the subsequent date i.e. 22/7/2019 as reflected from the Rojkam produced by the petitioner - original defendant, they proceeded with the suit and filed an application under Order VII Rule 11(a) of the Code of Civil Procedure, 1908 as also produced a list. It appears that the petitioner - original defendant has participated in the case after refusal of the request to reopen the right of the original plaintiff - witness and nearly 3 1/2 years have passed and the stage at which the case is posted is also known to the learned advocate for the petitioner, and therefore, while exercising powers under Article 227 of the Constitution of India even if there is some incongruity with regard to presence of petitioner - original defendant in the order impugned as also the Rojkam, which is of no or little consequence, I see no reason to interfere with this petition, and therefore, it is rejected.