2014(5) ALL MR 324
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
U.V. BAKRE, J.
Shri Sebastiao Fernandes Vs. Chandar Barkelo Fadte & Ors.
Writ Petition No.717 of 2013
9th January, 2014
Petitioner Counsel: Mr. P. TALAULIKAR
Respondent Counsel: Mr. S. REDKAR
Evidence Act (1872), S.133 - Cross-examination of plaintiff's witness - Closure, on ground of absence of defendants - Defendants remained absent due to noting of wrong date by Advocate - Request of second opportunity ought to have been considered in interest of justice - Inconvenience of plaintiff could have been made good by awarding costs. (Paras 9, 10)
3. By this petition, the petitioner has challenged the order dated 25/09/2013 passed by the learned Civil Judge, Junior Division, Quepem in Regular Civil Suit No.17/2008/A by which the application dated 02/09/2013 filed by the defendants no. 2 and 3 therein i.e. petitioner and respondent no. 7 herein for opportunity to cross-examine the plaintiff no. 1 (PW1) was dismissed.
5. The petitioner and respondent no. 7 have filed their written statement after amendment of the plaint thereby denying the amended paragraph 18-a of the plaint and specifically alleging that they are in possession and enjoyment of the property bearing Survey Nos.13/1 and 13/2 of village Quepem, Taluka Quepem for last more than 50 years and are occupying the residential house existing therein and that they have not carried out any encroachment as alleged by respondents no.1 to 5.
6. In the present petition, the petitioner has alleged as under: After the issues were framed in the suit on 06/09/2009, respondent no.1 (plaintiff no.1 in the suit ) as PW1 filed her affidavit-in-evidence on 22/09/2009. However, Learned Advocate for respondent no.6 (defendant no.1 in the suit) commenced cross-examination of PW1 on 19/11/2012 and resumed on 12/08/2013 and further cross-examination was adjourned to 19/08/2013. On 19/08/2013, the cross-examination by learned Advocate for respondent no. 6 was completed. On 19/08/2013, the Advocate holding for Counsel for the petitioner sought time to cross-examine PW1 and the learned Trial Court was pleased to grant time and the matter was accordingly adjourned to 26/08/2013. On 26/08/2013, neither the petitioner nor his Advocate was present, due to which the learned Trial Court closed the cross-examination of PW1.
7. Subsequently, on 02/09/2013, the learned Advocate for the petitioner and respondent no. 7 filed an application before the Trial Court for opportunity to cross-examine PW1 in the interest of justice. It was alleged that on 19/08/2013, the Advocate on record for the petitioner and respondent no. 7 had requested his colleague Advocate Karishma Dessai to hold for him and accordingly, she did so and communicated the next date of hearing to him. Inadvertently, the Advocate on record for the petitioner and respondent no. 7 noted the next date of hearing as 28/08/2013 in the afternoon session in his diary instead of 26/08/2013 in the afternoon session. It was further alleged in this application that on 28/08/2013 in the afternoon, the Advocate on record for the petitioner and respondent no. 7 had remained present in the Court and had found that the matter was taken up on 26/08/2013 in the afternoon session and cross-examination of PW1 was closed. The petitioner and respondent no. 7 in the said application specifically stated that non-appearance of their Advocate as also their own absence was not intentional, but was due to recording of wrong date by their Advocate, inadvertently. It was alleged that great loss and prejudice would be caused to the petitioner and respondent no. 7 in case an opportunity is not given to cross-examine PW1.
8. A perusal of the impugned order reveals that the submissions made by the petitioner and respondent no.7, in their application for opportunity to cross-examine PW1, as to why neither they nor their Advocate could remain present on 26/08/20133, have not at all been considered by the Trial Court, though it is mentioned that the said application was perused. There is no doubt that it was the duty of the concerned Advocate for the petitioner and respondent no.7 to remain present before the Trial Court on 26/08/2013. However, no reason has been given by the Trial Court as to why the justification given in the application for opportunity to cross-examine PW1, for absence has not been not believed.
9. Since it was specifically stated by the petitioner that the mistake was committed by his Advocate to note down the correct date due to which neither the petitioner and respondent no.7 nor their Advocate could remain present on 26/08/2013, the learned Trial Court ought to have considered the request, in the interest of justice and if it was found that inconvenience was caused to the plaintiffs, then, the same could have been made good by awarding costs. Certainly, since PW1 has not been cross-examined by the Advocate for petitioner, prejudice would be caused to the petitioner. PW1 being the plaintiff no.1 is definitely a crucial witness, who is required to be cross-examined completely.
(a) The impugned order dated 25/09/2013 passed by the Civil Judge, Junior Division, Quepem, in Regular Civil Suit No.17/2008/A is quashed and set aside.
(b) The application dated 02/09/2013 is allowed.
(c) Leave is granted to the petitioner (defendant no. 2 in said Regular Civil suit No. 17/2008/A) to cross-examine PW1, subject to the said defendant no. 2 paying costs of Rs.5,000/- to the plaintiffs as condition precedent, which shall be deposited before the Trial Court.
(d) Rule is made absolute in the aforesaid terms.