A.Writ Petition challenging two orders of the Trial Court: recasting of issues and recording that the defendant refused cross-examination, was dismissed as neither issue was reviewed nor could superior court interfere. Petition disposed.
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2468 OF 2009
Mr.Kishore R.Padwal. ..Petitioner.
V/s.
Mr.Rameshwar B. Vishwakarma & Anr. ..Respondents.
Ms.Kokila Kalra for petitioner.
Mr.R.M.Patne, AGP for Respondent No.2.
CORAM: A.M.KHANWILKAR,J
DATE : MARCH 16, 2009.
P.C. :
1. Heard Counsel for the Petitioner.
2. During the course of argument, learned
Counsel has submitted that the Petitioner intends to
challenge two separate orders by this one Petition.
The first order is dated 26th November, 2008. Second
Order is dated 2nd February, 2009.
3. Insofar as the Order dated 26th November,
2008 is concerned, the same is founded on the order
passed by this Court in Writ Petition No.7029 of 2008
dated 22nd October, 2008. In that sense, no fault
can be found with the said order. My attention is
invited to order dated 6th January, 2009 passed by
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the Trial Court at page 63 to contend that by this
Order, the Lower Court has undone what this Court had
directed to do and was in fact done by the
Predecessor on 26th November, 2008. This argument
does not commend to me. The issues which have been
recasted by the Trial Court, in no manner are
inconsistent with the issues ordered to be framed by
this Court. Two issues are recasted on 6th January,
2009. The only change that can be discerned from the
said issues is that the word "lawful" has been
inserted in issue No.1. That, in my opinion, does
not change the tenor of the issue suggested by this
Court in its order dated 22nd October, 2008.
4. In addition, by the impugned Order dated 6th
January, 2009, the Trial Court has additionally
recasted the issue No.3 as to whether the Plaintiffs
is entitled to perpetual injunction ? Once again, no
fault can be found with framing of the said issue.
Accordingly, the grievance regarding recasting of
issue by the lower Court is inappropriate does not
hold good.
5. The next grievance of the Petitioner is with
regard to the Order passed by the Trial Court of no
cross against the Petitioner/Defendant. The
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background in which the said order has been passed
can be discerned from the order passed below Exh.16
at page 72. The said Application was filed by the
Advocate for the Defendant without giving any
tangible ground for adjournment. The said
application has been rejected by the Trial Court. It
is thereafter, the Trial Court insisted to proceed
with the matter, when the advocate for the defendant
refused to cross-examine the witness. The argument
before this Court is that the advocate never refused
to cross-examine the witness to ask for time. That
does not take the matter any further. If the
defendant’s request of adjournment is rejected on the
finding recorded by the Trial Court that no tangible
reason was forthcoming, the Trial Court was justified
in insisting that the defendant should proceed with
the cross-examination. If the advocate for the
defendant failed to do so, the Court cannot be blamed
for having recorded that the defendant refused to
cross-examine the witness, hence, no cross.
6. Counsel appearing for the Petitioner contends
before this Court that the Defendant’s advocate was
always ready and willing to proceed with the
cross-examination. However, this Court is bound by
the fact recorded by the lower Court in its order
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dated 2nd February, 2009 that the Defendant refused
to cross-examine the witness. If the Petitioner has
any grievance about correctness of the recording of
that fact, such grievance, it is well established,
will have to be made only before the same Court and
cannot be the ground to challenge such order before
the superior Court. If the Petitioner, is so
advised, may approach the Trial Court for appropriate
relief, which application be considered on its own
merit.
7. Petition disposed of accordingly.
(A.M.KHANWILKAR,J)
2 issues framed by the court
Whether the alteration of issues by the Trial Court without material inconsistency constitutes a ground for interference.
Whether the recording of the trial court that the defendant refused to cross-examine a witness is a录 matter for the superior court to disturb.
Mr.Kishore R.Padwal
Mr.Rameshwar B. Vishwakarma & Anr.
A.M.KHANWILKAR
As recorded by the court registry
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