Dismissed

Mahendra Kumar Agrawal Son of Shri Chaturbhuj Agrawal v. Indian Medical Trust

Rajasthan HC7 Feb 2019CW/2796/2019

Case brief

AI extract

What is this about?

The Rajasthan High Court dismissed a writ petition challenging orders that closed the petitioner’s opportunity to crossexamine witnesses and lead evidence due to non-deposit of costs and delay in a suit pending for over 14 years.

What did the court decide?

The writ application fails and is dismissed; no indulgence was granted regarding the closure of evidence opportunity.

Mahendra Kumar Agrawal Son of Shri… — Contract and Commercial Disputes | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 2796/2019

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Mahendra Kumar Agrawal Son Of Shri Chaturbhuj Agrawal, Aged About 67 Years, Resident Of C-20, Sawai Jaisingh Highway, Road Infront Of Tagore Public School, Banipark, Jaipur At Present Resident Of 301 Kamal Apartment, C-6, Sawai Jaisingh Highway, Banipark, Jaipur.

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----Petitioner

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Versus

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Indian Medical Trust, Registered Office-4, Govind Marg, Jaipur302004, C/o Managing Trustee, Dr. Sobha Tomar Wife Of Shri Balveer Singh, Resident Of P.no. 4, Govind Marg, Jaipur.

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----Respondent

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For Petitioner(s) : Mr. Sajjan Kumar Agarwal – brother of the petitioner For Respondent(s) :

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HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA

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Judgment / Order

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07/02/2019

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Mr. Sajjan Kumar Agarwal, brother of the petitionerdefendant, while assailing the impugned order dated 11^th January, 2019, contended that the petitioner has no source of income and is suffering with heart ailment, and therefore, could not deposit the costs and adduce evidence. Hence, one last opportunity may be allowed to the petitioner to deposit the costs and lead evidence. But for dearth of financial resources and the petitioner is suffering with various ailments; no other reason was put forth while seeking indulgence qua the impugned orders dated 12^th December, 2018 and 11^th January, 2019, made by the Court below.

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(2 of 5)

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[CW-2796/2019]

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Heard and considered.

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Indisputably, the suit proceedings were instituted on 10^th April, 2003. On 1^st August, 2016, the opportunity to crossexamine the witnesses of the plaintiff-non-petitioner was closed. On a writ application instituted by the petitioner before this Court assailing the order dated 1^st August, 2016, a Coordinate Bench of this Court on 1^st August, 2018, upon hearing the counsel for the parties granted one last opportunity to the petitioner to crossexamine the witnesses enhancing the cost of Rs.3,000/- (Rupees: Three Thousands), which was inflicted by the Court below and was not deposited, to Rs.10,000/- (Rupees: Ten Thousands), and also cautioned the petitioner not adopt any delaying tactics while directing the trial Court to expedite the proceedings and decide the pending suit within a period of six months. At this juncture, it will be profitable to take note of the text of the order dated 1^st August, 2018, made by the Coordinate Bench of this Court, which reads thus:

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“1. The defendant-petitioner was granted time to cross-examine the witnesses of the plaintiffrespondent on payment of cost of Rs.3000/-, however, the cost was not deposited on the date fixed i.e. 01/08/2016 and accordingly, the opportunity to crossexamine the witnesses was closed by the learned trial court vide order impugned which is assailed in the present petition.

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Counsel for the petitioner submits that the petitioner was ready to deposit the cost. It is stated that on that very day, affidavit had been filed on behalf of the plaintiff-respondent and therefore, counsel for the defendant-petitioner sought time to crossexamine.

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(3 of 5)

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[CW-2796/2019]

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Per-contra, counsel for the respondent submits that even earlier, execution proceedings were initiated as against the petitioner and the suit being of specific performance, the petitioner is avoiding disposal of the suit and is adopting delaying tactics.

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Having heard learned counsel for both the sides, this Court finds that though the petitioner has erred, however, in the interest of justice, taking into consideration that affidavit was filed on the said date and possibility of the counsel not prepared on the said affidavit being there, last opportunity is given to the petitioner to cross-examine the witnesses on payment of cost of Rs.10,000/- and it is directed that the petitioner shall not adopt any further delaying tactics and the learned trial court is directed to expeditiously dispose of the suit itself within a period of six months henceforth.

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With the aforesaid observations/directions, the writ petition stands partly allowed.”

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The Court below made an order on an application instituted by the counsel for the respondent – plaintiff under Order 35-B read with Section 151 CPC relying upon the opinion of the Apex Court in the case of Manohar Singh v. D.S. Sharma & Ors. : AIR 2010 SC 508 and taking note of the fact that the petitioner was accorded opportunity imposing costs of Rs.3,000/-; against which a writ application (SBCWP Number 12530/2016), was instituted that was disposed off vide order dated 1^st August, 2018, as extracted herein above.

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By the order dated 12^th December, 2018, the Court below in the backdrop of the law declared by the Apex Court of the land in the case of Manohar Singh (supra), while explaining the scope and impact of Section 35-B CPC, granted the application of the respondent – plaintiff closing opportunity to lead evidence to the

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(4 of 5)

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[CW-2796/2019]

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petitioner. The petitioner instituted another application under Section 151 CPC on 7^th January, 2019, praying for recall and/or review of the order made by the Court below on 12^th December, 2018, which has been declined vide order dated 11^th January, 2019; leading to institution of the present writ application while assailing the legality and validity of the order dated 12^th December, 2018 along with order dated 11^th January, 2019.

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From the factual matrix that has surfaced from the materials available on record and the impugned orders is that the suit proceedings instituted in the year 2003, have been pending for more than 14 years and 9 months. Even the direction issued by the Coordinate Bench of this Court vide order dated 1^st August, 2018, to conclude the suit proceedings within six months; the time limit of six months expired on 31^st January, 2019. Further, the application instituted by the petitioner on 7^th January, 2019, was in-fact neither for recall nor for review of the order dated 12^th December, 2018, rather the petitioner detailed out the circumstances wherein he was not able to cross-examine the witnesses of the plaintiff-respondent. However, the petitioner instead of assailing the order dated 12^th December, 2018, soon thereafter instituted another application, which has been declined vide impugned order dated 11^th January, 2019,.

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For the reasons aforesaid so also in view of reasonings recorded by the Court below while declining the application instituted by the petitioner, in the singular facts of the case at hand, the impugned orders dated 12^th December, 2018 and 11^th January, 2019, call for no interference by this Court in exercise of writ jurisdiction under Article 227 of the Constitution of India.

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(5 of 5)

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[CW-2796/2019]

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In the result, writ application fails, and is, hereby dismissed.

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(VEERENDR SINGH SIRADHANA),J

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SS/122

Mahendra Kumar Agrawal Son of Shri Chaturbhuj Agrawal v. Indian Medical Trust

Case brief

What is this about?

What did the court decide?

Mahendra Kumar Agrawal Son of Shri Chaturbhuj Agrawal v. Indian Medical Trust

Case brief

What is this about?

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