Case Note & Summary
The petitioners, defendants in a civil suit filed by Union Bank of India for recovery of approximately rupees three lakh eighty-eight thousand, challenged an order of the Civil Judge, Senior Division, Amravati, which refused them permission to cross-examine the plaintiff's witnesses. The trial court's order was based solely on the ground that the petitioners' counsel was not present when the matter was called out for cross-examination. The petitioners argued that the chronology of orders (the refusal order at 4.05 p.m. and an order on the plaint at 4.07 p.m.) indicated procedural irregularity. The High Court observed that roznama entries are generally prepared at the end of the day and orders are not necessarily passed in chronological sequence, so no adverse inference could be drawn from the timing. However, considering the substantial amount involved in the suit, the High Court held that depriving the petitioners of the opportunity to cross-examine would be improper. Accordingly, the High Court allowed the writ petition, set aside the impugned order, and directed the petitioners to deposit rupees five thousand as costs in the trial court within two weeks (by 19-1-2010). The petitioners were required to complete cross-examination of the plaintiff's witnesses on 30-1-2010, and the plaintiff was directed to keep its witnesses ready. If the trial judge was unavailable, the District Judge was to assign the matter to another judge. The petitioners were also directed to tender their evidence within fifteen days of completion of cross-examination.
Headnote
A) Civil Procedure - Right to Cross-Examine - Opportunity of Hearing - Code of Civil Procedure, 1908, Order 18 Rule 2 - The trial court refused permission to cross-examine the plaintiff's witnesses because the defendant's counsel was absent when the matter was called out. The High Court held that in a suit for recovery of a substantial amount (rupees three lakh eighty-eight thousand and odd), it would be improper to deprive the defendant of an opportunity to cross-examine. The impugned order was set aside subject to payment of costs of rupees five thousand to compensate the plaintiff for needless litigation expenses. (Paras 2-5) B) Civil Procedure - Roznama Entries - Chronology of Orders - Code of Civil Procedure, 1908 - The High Court observed that roznama entries are generally prepared at the end of the day and orders are not necessarily passed in chronological sequence. Therefore, the time mentioned on the application or plaint does not conclusively indicate procedural irregularity. (Para 4)
Issue of Consideration
Whether the trial court was justified in refusing permission to cross-examine the plaintiff's witnesses solely on the ground that the defendant's counsel was absent when the matter was called out.
Final Decision
The petition is allowed. The impugned order is set aside subject to petitioners depositing rupees five thousand as costs in the trial court within two weeks (by 19-1-2010). Petitioners shall complete cross-examination of plaintiff's witnesses on 30-1-2010; plaintiff to keep witnesses ready. If trial judge unavailable, District Judge to assign to another judge. Petitioners to tender their evidence within fifteen days of completion of cross-examination. Rule made absolute.
Law Points
- Right to cross-examine
- opportunity of hearing
- costs for delay
- procedural fairness
