High Court · 2012

The application dated 30.4.2012 was rejected by the learned trial Court. Challen ging the said order, this application has been filed under Article 227 of the Co nstitution of India before this Court. Mr. S. Chamaria, learned counsel for the petitioner has submitted that the learn ed trial Court was not justified in rejecting the petition and in expunging the evidence of D.W.3 and that the same has caused irreparable loss and injury to th e petitioner. He pleads that this Court may grant one more opportunity for cross -examination of the petitioner by setting aside the order impugned in this petit ion. He submits that the petitioner, whatever may be the circumstances, would co me to the Court for her cross-examination on the date to be fixed by the Court f or the said purpose. He has also submitted that he will take required steps on t hat very date for calling official witnesses. Mr. G.N. Sahewalla, learned senior counsel for the Respondent No.1 submits that the sequence of events eloquently depicts the dilatory tactics adopted by the de fendant No.3 to frustrate and prolong the proceeding and, therefore, the learned trial Court was wholly justified in rejecting the petition filed for adjournmen t by the order dated 30.4.2012. It is his submission that the petition was not s upported by any medical certificate and except making a bald statement that her conducting advocate had met with an accident, no further details was given. Lear ned senior counsel also submits that the petition filed does not satisfy the con dition precedent for grant of adjournment under Order 17 Rule 2 (d) CPC in the i nstant case. Learned senior counsel points out that no interference is called f or with the impugned order dated 30.4.2012. The catalogue of dates and orders passed by the learned trial Court would go to show that the cross-examination of the defendant No.3 had not taken place for mo re than one year after she had submitted her evidence on affidavit on 28.3.2011. Apart from taking recourse to filing a petition under Order 26 Rule 1 and 2 rea d with Section 151 CPC for Commission, for review of the order rejecting the ord er for Commission and filing of the petition for transfer of the case, the defen dant No.3 had also prayed for adjournment on three occasions prior to the filing of the adjournment petition on 30.4.2012. When prayer for grant of adjournment on the ground of sickness was not supported by any affidavit or any medical cert ificate and where no material particulars are given with regard to the date of a ccident in which the conducting advocate of the petitioner was involved, the lea rned trial Court was within its jurisdiction to reject the petition thereby expu nging the evidence of D.W.3 and no interference would, otherwise, have been occa sioned. However, this Court is persuaded by submission of the learned counsel fo r the petitioner that one last opportunity should be granted to the petitioner for her cross-examination, on a date to be fixed for the said purpose by this Co urt. In view of the undertaking given by the learned counsel for the petitioner that the petitioner will appear before the learned trial Court on a date to be s o fixed, this Court, for furtherance of justice, considers it appropriate to per mit the petitioner to face cross-examination by way of grant of a last opportuni ty. It has been pointed out by the learned counsel for the petitioner that the next date is fixed on 14.6.2012 for argument. Considering the matter in its entirety, instead of argument, on 14.6.2012, the d efendant No.3 will appear before the Court for her cross-examination. The defend ant No.3 will also take steps for examination of official witnesses to be examin ed on behalf of the defendant No.3. Taking that view, the order dated 30.4.2012 is set aside. However, it is made cl ear that if the petitioner does not appear in the Court on 14.6.2012 for her cro ss-examination, the evidence-in-chief filed by way of affidavit by the petitione r shall stand expunged and the learned trial Court will proceed to hear the argu ment. With the aforesaid observation and direction, the petition is disposed o f.