ISMAILBHAI MAHAMMADBHAI PATEL Vs. RAMESHBHAI NAGJIBHAI PATEL

JUDGEMENT

(1.) Challenge in this petition under Article 227 of the Constitution of India is to the order dtd. 16/3/2017 and 19/11/2018 passed by the Courts below, by which the prayer for recalling of witnesses for cross-examination made by the petitioner-defendant was turned down by the trial Court as well as Appellate Court.

(2.) This Court has heard learned counsel Mr. Jamshed Kavina for learned counsel Mr. S.P. Majmudar and learned counsel Mr. K.R. Joshi for the respective parties.

(3.) The respondents-original plaintiffs filed a suit for declaration, injunction and cancellation of the registered sale-deed against the present petitioners-original defendants and the same is registered as Regular Civil Suit No.159 of 2015. After completion of the pleadings, the trial Court framed the issues. The respondent-plaintiff Ramesh Patel and his two witnesses were examined at Exh.43, 74 and 78 respectively. After closing of the evidence, the suit was posted for the evidence of the defendant. The defendant filed his affidavit in the form of chief examination. Meanwhile, he has changed his advocate. In these circumstances, the defendant- petitioner moved an application Exh.98, under Sec. 151 of the Civil Procedure Code, praying inter-alia that, some of the questions still required to be asked to the witnesses and therefore, the witnesses i.e. plaintiff and his two witnesses may be recalled for the fair trial and to establish his defense. He has also moved an application Exh.103 for production of documentary evidence and the same was allowed by the trial Court. The trial Court after hearing the parties, found that, the application for recalling of the witnesses is not bonafide and with a view to protract the trial, the application is being filed, as a result, the Court below has rejected the application. The said order was challenged by filing the appeal before the District Court. The District Court upheld the order of the trial Court observing that, no sufficient grounds exist to recall the witnesses.