STATE OF GUJARAT Vs. MANIBHAI MAKANJI PATEL

JUDGEMENT

(1.) "Whether the learned trial Judge was justified in not permitting the learned A.G.P. to cross-examine the plaintiff's witness, ordering the closure of the cross-examination, on the sole ground that earlier during the course of the day, when the case was called out twice, despite the fact that the same was specifically fixed for cross-examination of the plaintiff's witness, he did not remain present ?" This, in short, is the question that arises for consideration in the background of following facts.

(2.) To narrate briefly, the few relevant facts - Shri Manibhal Makanji Patel had filed a Civil Suit No. 420 of 1984 in the Court of learned Civil Judge (S. D.), Nadiad. On 6-9-1990, the case was fixed for cross-examination of the plaintiff's witness, with the consent of the learned Advocates appearing for the respective parties. However, when the same was called out, Mr. N. S. Prajapati, who at the relevant time happened to be both A.G.P. as well as A.P.P. was not present, as a result, the learned trial Judge kept back the matter for sometime. Thereafter, once again the matter was called out and at that time also, since Mr. Prajapati, the learned A.G.P. was absent, the cross-examination of the plaintiff's witness was abruptly ordered to be closed by the learned trial Judge. On receiving this information, Mr. Prajapati at once rushed to the Court and submitted application (Exh. 67) praying therein that as he was held up in Sessions Case No. 178 of 1989, Special Case No. 5 of 1989 and some other bail matters, he could not remain present when the case was called out, and in that view of the matter, the case may once again be called out and he may be permitted to cross-examine the plaintiff's witness in the interest of justice. A copy of this application was also immediately served upon the learned Advocate for the plaintiff, who initially objecting to the same, ultimately made an endorsement to the effect that if the Court was at all inclined to grant such a permission to the learned A.G.P. then the necessary cost may be awarded. The learned trial Judge thereafter by a short order dated 6-9-1990 rejected the said application Exh. 67, giving rise to the present Civil Revision Application.

(3.) Now, it is indeed strange and shocking too, to find that the learned trial Judge has quite capriciously rejected the application of the learned A.G.P. apparently because he was exasperated and annoyed over his nonappearance when the case was called out twice, more particularly when the same was fixed for cross-examination, at his own instance . It is indent quite understandable that the suit in question being of the year 1984, the learned Judge was bound to, and therefore, quite anxious and justified to proceed ahead and dispose of the same, as early as possible. It is further equally understandable that since the matter was peremptorily fixed for cross-examination of the plaintiff's witness on 6-9-1990 with the consent of the learned A.G P. Mr. Prajapati, his non-appearance when the case was called out would not only be quite uncourteous and inconvenient to the learned trial Judge and the learned Advocate for the plaintiff but the same was surely bound to cause greater hardship and inconvenience to witness who was present before the Court for the purpose of crossexamination. In that view of the matter, undoubtedly, the learned A.G.P. should have taken all possible care to see that he remained present on the appointed day to cross-examine the plaintiff. Not only that but all the learned Advocates under such circumstances, even otherwise, are expected to be considerate enough to such witnesses; bearing in mind the consequential hardships and inconvenience that may ensue as a result of their absence or indiscreet adjournments. In the given case, the witnesses may be lady, sick, old or infirm, businessman or some Government servant. They may as well be coming from distant areas leaving aside their routine jobs to be performed; sometimes also for going their wages . These days, it is a matter of common experience that the litigations in the Court drags on for years together for want of adequate number of Courts, If under such circumstances, after filing of the suit or launching of the prosecution, if the cases are mechanically adjourned and the witnesses are asked to appear time and again on the adjourned dates, and on those days also, if the cases are adjourned, it is indeed not difficult to understand the plight of such witnesses. Such indiscreet adjournments for number of times virtually amounts to take the witness[es] on ban and keep them as hostage till the suit/case is decided. Is this not a punishment to a person who figures before the Court to render his services to justice ? In this view of the matter, can there be any doubt that by frustrating the witnesses goal of cheap and expeditious justice could ever be reached . ? Now, if such witnesses obliges us. and accordingly attend the Court proceedings by taking leave, besides undergoing physical and financial hardships and inconvenience of the modern days to reach the Court, when ultimately after waiting few hours in the Court premises are told that the case has been adjourned, either because of the Advocate has taken adjournment or that they were on strike, it is indeed not difficult to appreciate how cursed they might be feeling and accordingly, what reaction they would be giving for their uncared inconvenience. Not only the frequent but even an occasional undeserving adjournments are bound to dampen the spirit of witnesses making them totally exasperated and curing, resulting into the wastage of their private and public time . These are the tell-tale circumstances which not only the learned Advocates are required to bear in mind but even it is the duty of the learned trial Judge to see that whenever any indiscreet adjournment is sought which results into inconvenience and hardships to the witnesses, the party seeking adjournment should be visited with adequate cost and in case if the party persist and does not improve, it should be further visited with exemplary cost, as the case may be. This is one of the foremost duty of every trial Judge. It is the learned trial Judge alone who on the one hand by initiating such measures can protect the interest of the witnesses and on (he other hand regulate and control the Court discipline and proceedings which may in turn help in expeditiously disposing of the cases. If the learned trial Judge also ignores this direction of the Court, then he is also liable for explanation in not conducting the proceedings in a business like manner, which ultimately occasions delay and consequential likelihood in failure of justice; as could be seen in the instant case, where a suit of the year 1984 has remained undisposed of till 1993 . In fact, looking to the pathetic adjournment of cases these days, on mere asking, the time has come to enlighten the witness[es also of their rights to the cost for inconvenience and hardships meted out to them and flung right at their face, at the whims and caprice of interested otherwise . The witnesses are as much a part and parcel of the Administration of Justice' as the learned Judge and/or Advocate for their respective roles to be played, and accordingly, they also deserve dignity, respect and honour from all the concerned. In fact, no witness should over be taken for granted, ignoring altogether his dignity, respect and his physical and financial inconvenience and hardships. In other words, they cannot be reduced to some straws which could be blown hither and thither with the winds of indiscreet adjournments and/or strike by the learned Advocates. In this view of the matter, as regards the rights of witnesses against the uncalled for inconvenience and hardships, imparting of legal education to them appears to be necessary. This is the only way in which the cry against the delay of justice can be attended to and arrested. This is the only way the Court can protect the witnesses coming before it to give evidence. This is the only way when witnesses themselves respectfully ask Court for protection against the inconvenience and hardships by insisting for cost/exemplary cost, as the case may be. If the desired care of the witnesses is not taken, as observed by this Court, perhaps, the day is not far off when every Court would be asked to hang a Notice Board in the Court-room informing witnesses that in the event of adjournments and the resultant inconvenience and hardships they are entitled to cost . None can turn deaf ear to the fact that both - the Court and the Society are under obligation to witness, but for whom no justice could ever be done by any Court. In this view of the matter, it is the duty of the learned trial Judge to take all possible care to maintain the honour and dignity of the witness from all possible sort of unnecessary adjournments.