NANHE KHAN Vs. GEETABAI

JUDGEMENT

(1.) BEING aggrieved by the order dated 22-08-2005 in civil suit No. 21-A/2005 passed by Civil Judge, Class -I, Tarana whereby the applicants filed by the petitioner to cross examine the witnesses of the respondents No. 1 to 9 has been dismissed, the present writ petition is filed.

(2.) SHORT facts of the case are that respondents No. 1 to 9 filed civil suit for cancellation of sale-deed, declaration and permanent injunction against the petitioner and respondents No. 10 and 11. The suit was contested by petitioner on various grounds. After completion of the pleadings of parties, learned Court below framed issues and fixed the case for recording the evidence on 5-11-2004. On this date adjournment was sought and case was fixed for evidence on 3-1-2005. On this date also adjournment was sought on behalf of the counsel for petitioner and case was adjourned to 27-1-2005. On this date also adjournment was sought and case was adjourned to 25-2-2005 subject to payment of cost of rs. 35/ -. Again adjournment was sought on account of sickness of Counsel of the petitioner and case was adjourned to 18-3-2005. On this date Mr. G. K. Baheti was appointed as Commissioner to record the statement of witnesses of the respondents No. 1 to 9. Mr. G. K. Baheti fixed the case on 24-3-2005 for recording the evidence. On this date, witnesses were present and case was fixed at 11. 15 AM but the petitioner or his Counsel did not appear, therefore, commissioner adjourned the case at 2. 30 PM but at that time also petitioner or his Counsel was not present, therefore, Commissioner closed the right of the petitioner to cross-examine the witnesses. Thereafter, at 3. 30 PM an application was filed on behalf of the petitioner on the ground that advocate was to come from Ujjain to cross-examine the witnesses of the respondents who came in time but was seeking instructions from the local lawyer, therefore, could not appear when the case was called. Since, evidence was closed by the Commissioner at 2. 30 PM itself, therefore, the matter was referred by the Commissioner to the learned Court below where petitioner moved application for seeking permission to cross examine of the witnesses. By the impugned order dated 22-8-2005 the learned Court below dismissed the application, being aggrieved by this, the present petition has been filed.

(3.) LEARNED Counsel for the petitioner submits that the Commissioner was appointed and the case was fixed before the Commissioner first time on 24-3-2005. On this date, advocate who was engaged from Ujjain who came to tarana on the fixed date to cross examine the witnesses who could not appear. before the Commissioner at 11. 00 AM or 2. 30 PM when the case was called. Learned Counsel submits that this fact is evident from the fact that application was moved on that very day at 3. 30 PM. It is further submitted that strict principle of three adjournments should not be applied in each and every case and other facts should also be taken into consideration to determine the bonafides. Learned Counsel for the petitioner placed reliance on a decision in the matter of Salem Advocate Bar Association Vs. Union of India, reported in 2005 AIR SCW 3827, wherein Hon'ble Apex Court has examined provision of order XVII Rule 1 of CPC as inserted by amendment Act of 1999. In this case hon'ble Apex Court has observed as under:-