The High Court dismissed a writ petition challenging the trial court's order allowing defendants a last chance to cross-examine the plaintiff in a civil suit for demolition notice, ruling that no injustice was caused.
The writ petition was dismissed; the trial court was directed to expedite the hearing.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3201 OF 2006
Faiyyaz Hasham Shaikh ..Petitioner.
Vs.
Pune Municipal Corporation & Ors. ..Respondents.
Mr.V.A.Shastry, adv. for the Petitioner.
Mr.Pethe i/b R.G.Ketkar, advs. for the Respondents.
CORAM : J.H.BHATIA, J.
DATE : AUGUST 17, 2007.
P.C.:
1. Heard the learned counsel for the Parties and
perused the impugned order.
2. The petitioner is the original plaintiff. He
had filed Regular Civil Suit No.1711 of 2000 seeking
declaration that the notice issued by the respondent
no.1 Municipal Corporation for demolition of his
alleged unauthorised construction was illegal. In that
suit, the plaintiff had filed his affidavit in
examination-in-chief and the matter was fixed for
cross-examination of the defendants on 17-6-2003. On
that day, the defendant no.1 cross-examined him. It
appears that he was not cross-examined by the defendant
nos.2 to 11 and the matter was closed for final
arguments and the judgement. The defendant nos.2 to 11
made an application on 18-1-2006 seeking permission to
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cross-examine the plaintiff. That application was
opposed on behalf of the plaintiff. After hearing the
parties, the learned Civil Judge passed the impugned
order on 1-2-2006 granting a last chance to the
defendants subject to payment of cost of Rs.3,000/-.
That order is challenged in the present writ petition
by the plaintiff.
3. The learned counsel for the petitioner contended
that as per the provisions of the Order 17, Rule 1 and
2, not more than 3 adjournments could be given and that
too subject to cost. He pointed out that as per the
Roznama, matter was adjourned atleast for 33 times
after filing of the affidavit in examination-in-chief
but the defendants never applied for cross-examination
.In spite of this the trial Court had granted one more
adjournment subject to payment of Rs.3,000/-. The cost
was to be deposited on the same day. Cost was
deposited as per the order.
4. It is true that as per the record and even as
per the observations made in the impugned order by the
learned trial Court, matter was adjourned on 33
occasions and the defendants had not applied for
cross-examination. However, the learned trial Court
felt that when the defendants had given reasons in
their application for seeking an opportunity to
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cross-examine, it would be in the interest of justice
that the matter should be decided after giving
opportunity to both sides. After taking into
consideration this aspect, the learned trial Court
imposed heavy cost of Rs.3,000/- for giving opportunity
to cross-examine the plaintiff. It may be noted that
even though the defendants had not applied for
cross-examination, on 33 occasions matter was
adjourned, not on the request of the defendants, and
there is nothing on record as to why the matter was
adjourned and not disposed off. Incidentally before
the matter was taken up for final arguments, defendants
noted that the plaintiff was not cross-examined on
their behalf and they made an application, which was
granted subject to payment of cost of Rs.3,000/-.
Taking into consideration the circumstances, I find
that no injustice will be caused to the plaintiff if he
is required to offer himself for cross-examination.
His cross-examination is material particularly when
there is allegation that the plaintiff has made
unauthorised construction and the notice was issued by
the Municipal Corporation for the demolition of the
same. Taking into consideration these circumstances, I
find no valid reasons to interfere in the impugned
order.
5. Petition stands dismissed.
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6. The trial Court shall expedite the hearing and
dispose off the matter as early as possible.
[J.H.BHATIA, J.]
2 issues framed by the court
Whether the High Court should interfere with the trial court's order granting a final opportunity for cross-examination subject to payment of costs.
Whether prejudice was caused to the plaintiff by allowing the defendants to cross-examine him at a late stage in the proceedings.
Faiyyaz Hasham Shaikh
Pune Municipal Corporation
J.H.BHATIA
As recorded by the court registry
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