AMIT M PATHAKJI Vs. BHAVNA AMIT PATHAKJI

JUDGEMENT

(1.) RULE. learned advocate waives the service of notice of rule on behalf of the respondent. In the facts and circumstances of the case and with the consent of the learned advocate appearing on behalf of the respective parties, the petition is taken up for final hearing today. By way of this petition under Article 227 of the Constitution, the petitioner husband - original opponent challenged the legality and validity of the order passed below Ex. 275 dismissing the said application and allowing the petition to cross-examine the respondent wife - original applicant. The respondent herein - original applicant wife - lawyer has submitted application in the court of learned Senior Civil Judge, Vadodara under secs. 18 and 23 of the Hindu Adoption and Maintenance Act, 1986 asking for interim maintenance to the tune of Rs. 8000=00 per month. The said application came to be submitted in the year 1996 and in fact the order for interim maintenance is already passed directing the petitioner to pay Rs. 3500=00 per month which has been subsequently enhanced to Rs. 4500=00 per month. It appears that in the said proceedings, the respondent herein - original applicant has submitted her examination-in-chief by way of affidavit vide Ex. 170 on 20/8/2004 under Order 18 Rule 4 Sub-Rule 1 of the Code of Civil Procedure. On 18/3/2005 right of the cross-examination of the petitioner was closed. Thereafter, the petitioner submitted an application vide Ex. 218 to allow him to cross-examine the original claimant and the said application was allowed on 12/8/2005 with costs of Rs. 500=00. It appears that again the stage of making cross-examination of the original claimant was closed on 11/10/2005 on the application submitted by the original claimant and the said application came to be granted. However, instead of cross-examining the original claimant, the petitioner herein submitted application Ex. 223 under Order 7 Rule 11 of the Code of Civil Procedure to reject the application. The said application came to be dismissed on 13/12/2007. Thereafter, one another application came to be submitted by the petitioner herein at Ex. 275 to open the stage of cross-examination of the original claimant under sec. 151 of the Code of Civil Procedure. The learned Second Additional Senior Civil Judge, Vadodara dismissed the said application by observing that though ample opportunities have been given to the petitioner herein to cross-examine the original claimant, he has not availed of the same and on the contrary on the last occasion when the court shown indulgence and opened the stage of cross-examination, instead of cross-examining the orignal applicant, he submitted application under Order 7 Rule 11 of the Code of Civil Procedure to dismiss the application. The learned trial court also observed that earlier application Ex. 256 submitted by the petitioner herein came to be rejected which was also for opening the stage of cross-examination of the original applicant and therefore, the present application is not maintainable and/or principles of res-judicata would be applicable. Being aggrieved by and dissatisfied with the said order, the petitioner herein - original opponent has preferred the present petition under Article 227 of the Constitution of India. Mr. AJ Shastri, learned advocate appearing on behalf of the petitioner - husband has submitted that in view of number of proceedings pending between the parties, the petitioner is required to defend the same and is not in a position to remain present in each and every proceedings. It is submitted that some proceedings are also pending before this Court. It is submitted that even a situation has been created by filing criminal case whereby the petitioner has to leave his own house/bungalow, which is situated in the heart of city of Vadodara and the petitioner has to live in a rented premises and the said bungalow of the petitioner is now occupied by the respondent wife. It is further submitted that so far as the amount of interim maintenance is concerned, the same is being regularly paid. It is submitted that it is true that in view of the indulgence shown on the last occasion, the petitioner husband ought not to have submitted application under Order 7 Rule 11 of the Code of Civil Procedure. However, under bonafide impression that he had a right to submit the application, the application was filed, might be under the wrong advise. It is submitted that in the facts and circumstances of the case and serious allegations to which even the learned trial court has taken note, if one last opportunity is given to the petitioner to do complete and substantial justice, the same will meet the ends of justice. It is submitted that even for giving an opportunity, heavy cost can also be imposed upon the petitioner and suitable condition also be imposed that on the next date of hearing, the original applicant be cross-examined and thereafter on the next date of hearing, the arguments be concluded and the learned trial court be directed to decide and dispose of the application immediately. The application is opposed by Mr. MTM Hakim, learned advocate appearing on behalf of the respondent wife, who is a practicing lawyer. Mr. Hakim, learned advocate appearing on behalf of the respondent has vehemently submitted that twice opportunity was given to the petitioner herein to cross-examine the original applicant, however, the petitioner herein did not avail the said opportunities and on the contrary on the last occasion he submitted application under Order 7 Rule 11 of the Code of Civil Procedure to dismiss the application and thus, the petitioner has misused the indulgence shown by the trial court and therefore, the trial court is justified in rejecting the application. It is submitted that even if one more opportunity is given, the same would be misused by the petitioner with a view to delay the proceedings. It is submitted that arguments of original applicant are over and only the learned advocate appearing on behalf of the petitioner husband has to make submissions. Submitting accordingly, it is requested to dismiss the present petition. Heard the learned advocate appearing on behalf of the respective parties. It is true that twice the learned trial court has shown indulgence and has opened the stage of cross-examination, but the petitioner did not cross-examine the original applicant. It is also true that on last time when the indulgence was shown and stage of cross-examination was opened, instead of cross-examining the original applicant, the petitioner herein submitted application under Order 7 Rule 11 of the Code of Civil Procedure to reject the application. It appears that what is mainly weighed with the trial court is that instead of cross-examining the original applicant, the petitioner herein submitted application under Order 7 Rule 11 of the Code of Civil Procedure. It is the case on behalf of the petitioner that he was under bonafide impression that such an application is maintainable or he was misguided. It is required to be noted at this stage that number of litigations and proceedings are pending between the parties in different forums and the original applicant is a lawyer and her father is also a lawyer. It is the contention on behalf of the petitioner that in view of number of litigations and proceedings pending between the parties in different forums, it is not possible for the petitioner herein to appear in every proceedings and he is already harassed a lot. It is submitted by the petitioner that inspite of the fact that he is the owner of one bungalow situated in the heart of city of Vadodara, he has to leave the said bungalow and has to live in a rented premises. Even the trial court has also in the impugned order has observed that the opponent (petitioner herein) may have a good case as alleged by him relating to chastity of his wife. The learned trial court has further observed that "this Court has full sympathy to opponents (petitioner herein)" Sec. 151 of the Code of Civil Procedure confers powers upon the trial court to pass appropriate order to do complete and substantial justice. It is reported that the next date of hearing is 15/7/2008. Mr. Shastri, learned advocate appearing on behalf of the petitioner husband has submitted that the petitioner herein has filed undertaking before this court stating that on the next date of hearing, the petitioner herein or his advocate will cross-examine the original applicant - wife without fail and that he shall not ask for adjournment and within next scheduled date, he shall complete the proceedings within whatever time schedule this Court may fix and will not ask for time. This court suggested that on payment of cost of Rs. 5000=00, one last opportunity be given to the petitioner herein to cross-examine the original applicant wife. Mr. Shastri, learned advocate appearing on behalf of the petitioner herein has submitted that even petitioner is having Pay Order of Rs. 5000 bearing No. 006919 of Bank of India, University Road Branch to be paid to the original applicant wife towards cost and the same would be paid directly by the petitioner any time. Considering the facts and circumstances of the case, this court is of the opinion that if last opportunity is given to the petitioner herein on condition to pay costs of certain amount, it will meet the ends of justice. If the original applicant is not cross-examined in that case natural consequences would be that the learned trial court pass appropriate final order on the said application observing that the applicant is not cross-examined and whatever the said by the original applicant is proved. It cannot be disputed that the right of cross-examination is a valuable right. Under the circumstances, if one opportunity is given to the petitioner herein, it will meet the ends of justice. For the reasons stated hereinabove, the petition succeeds. The impugned order passed by the 2nd Additional Senior Civil Judge, Vadodara below Ex. 275 in Misc. Civil Application No. 3 of 1996 dtd. 13/5/2008 is hereby quashed and set aside on condition to pay Rs. 5000=00 to the respondent wife - original applicant towards costs and the petitioner herein is given one last opportunity to cross-examine the respondent wife - original applicant. As per the undertaking filed by the petitioner, the petitioner or his advocate shall cross-examine the respondent wife - original applicant on the next date of hearing i. e. on 15/7/2008 itself without fail and will not ask for time on that day. On the next date of hearing thereafter the learned advocates appearing on behalf of the respective parties shall complete their arguments and thereafter the trial court to pass appropriate order in accordance with law and on merits as expeditiously as possible. Rule is made absolute accordingly. Direct Service Today is permitted.