SMT. JUBEDA W/O AMIN KHAN, BY CASTE MUSLIM, R/O PLOT NO.69 B SINDHI MUSLIM COLONY, MASURIYA EXTENSION, JODHPUR (RAJ.) Vs. CHAND KHAN S/O RAHMAT KHAN BY CASTE MUSLIM, R/O SINDHI MUSLIM COLONY, MASURIYA EXTENSION, JODHPUR (RAJ.)

JUDGEMENT

(1.) This writ petition under Art. 227 of the Constitution of India has been preferred to challenge the order dated 3.9.2015 passed by Civil Judge (S.D.) No.5, Jodhpur whereby the application filed by the petitioner/defendant under Sec. 151 Code of Civil Procedure for recalling the order of closing the opportunity to cross-examine the plaintiff has been rejected.

(2.) Learned counsel for the petitioner/defendant has argued that on 08.01.2015, counsel for the petitioner/defendant was busy in arguments before this Court in SB Civil First Appeal No.469/2009, hence he could not attend the matter pending before the learned trial Court and was unable to cross-examine the plaintiff. An application was also filed on the above said ground to adjourn the matter and to fix up some date of Saturday but the opportunity to cross-examine the plaintiff was closed on that date. Thereafter, he filed an application on 12.2.2015 (Annex.8) along with the affidavit of the concerned counsel to recall the order dated 08.01.2015 and to allow the opportunity to cross-examine the plaintiff. The said application was rejected by learned trial Court vide order impugned dated 03.09.2015. Learned counsel has submitted that though the matter was adjourned for cross-examination of the plaintiff on the earlier dates but the adjournment was not granted at behest of the petitioner/defendant but for other reasons including the Presiding Officer remaining on leave and the advocates boycotting the judicial work etc. He has submitted that on 18.10.2014, one opportunity was of course granted to cross-examine the plaintiff at the cost of Rs.500.00 on the prayer made by counsel for the petitioner/defendant. Thereafter on the next date i.e. 20.12.2014, the Presiding Officer was on leave and on the next date fixed i.e. 8.1.2015, opportunity for cross-examination of the plaintiff was closed. He has submitted that learned trial Court, while ignoring these factual aspects has rejected the application for recalling the said order dated 08.01.2015 vide order impugned dated 03.09.2015. He has, thus, prayed that in the interest of justice, opportunity to cross-examine the plaintiff may kindly be allowed as the cross-examination of plaintiff on behalf of defendant No.2 is still continuing.

(3.) Per contra, learned counsel for the respondents plaintiffs has vehemently opposed the prayer. He has submitted that affidavit of plaintiff Chand Khan was submitted on 01.11.2012. Thereafter, the petitioner/defendant No.1 went on to file applications one after the other just to prolong the proceedings, which came to be rejected by learned trial Court on various dates of hearing. The petitioner anyhow continued to prolong the proceedings by filing revisions before Honourable High Court. Lastly, the cross-examination of the plaintiff commenced on 17.5.2014 and detailed cross-examination was done on behalf of petitioner/defendant but that also remained inconclusive. On 18.10.2014 though the plaintiff remained present before the Court since 11 a.m. but on the prayer made on behalf of petitioner/defendant, one more opportunity to cross-examine the plaintiff was granted to the petitioner/defendant at the cost of Rs.500.00. He has also submitted that again on 08.01.2015, counsel for defendant No.1, by filing an application, prayed for adjourning the matter to cross-examine the plaintiff. The prayer was rejected and the cross-examination was closed. When the application to recall the said order and to reopen the cross-examination was filed by petitioner, it was rightly rejected by learned trial Court vide order impugned while mentioning about the various opportunities which had earlier been sought by the defendant No.1 and granted to him.