Case Note & Summary
The petitioner, Manohar Mahadeo Dande, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 14/06/2011 passed by the learned Additional Judge, Small Causes Court, Nagpur. The impugned order rejected the petitioner's application (Exhibit-28) for setting aside the order of no cross dated 15/07/2010 and the order closing the matter for judgment on 03/12/2010. The petitioner contended that he and his counsel were always present on dates fixed for cross-examination, but on 15/07/2010, the counsel was late, resulting in the no cross order. The petitioner filed the application to set aside that order, which was rejected. The respondent, represented by counsel, fairly stated that in view of the petitioner's undertaking in paragraph 7 of the petition to conduct cross-examination within a specified time if opportunity was granted, the petition could be disposed of. The High Court found the respondent's stand fair and reasonable, set aside the impugned order, and permitted the petitioner to cross-examine the decree holder/applicant in Mesne Profit Case No.24/2006 on a date to be fixed. The parties agreed to prepone the date from 22/08/2011 to 11/08/2011 for cross-examination.
Headnote
A) Civil Procedure - Setting Aside No Cross Order - Opportunity for Cross-Examination - The petitioner sought setting aside of the no cross order dated 15/07/2010 and the order closing the matter for judgment on 03/12/2010, which were rejected by the trial court. The High Court set aside the impugned order and permitted cross-examination, noting the respondent's fair stand and the petitioner's undertaking to conduct cross-examination within specified time. (Paras 2-4)
Issue of Consideration
Whether the order rejecting the application for setting aside the no cross order and closing of matter for judgment was justified.
Final Decision
The impugned order dated 14/06/2011 is set aside. The petitioner is permitted to cross-examine the decree holder/applicant in Mesne Profit Case No.24/2006 on a date to be fixed. The date is preponed to 11/08/2011 by consent.
Law Points
- Setting aside of no cross order
- opportunity for cross-examination
- fair and reasonable stand
- undertaking to conduct cross-examination within specified time
Case Details
2011 LawText (BOM) (07) 32
Writ Petition No.3061/2011
Shri A. K. Choube for petitioner, Shri S. S. Pandit for respondent
Manohar S/o Mahadeo Dande
Manohar S/o Bhaskar Bhave
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging an order of the Small Causes Court rejecting application for setting aside no cross order.
Remedy Sought
Petitioner sought setting aside of the order dated 14/06/2011 rejecting his application for setting aside the no cross order and closing of matter for judgment, and permission to cross-examine.
Filing Reason
The petitioner's counsel was late on 15/07/2010, resulting in a no cross order; the application to set aside that order was rejected.
Previous Decisions
The trial court passed a no cross order on 15/07/2010 and closed the matter for judgment on 03/12/2010; the application to set aside those orders was rejected on 14/06/2011.
Issues
Whether the trial court was justified in rejecting the application for setting aside the no cross order and closing of matter for judgment.
Submissions/Arguments
Petitioner argued that he and his counsel were always present on dates fixed for cross-examination, but on 15/07/2010 the counsel was late, leading to the no cross order.
Respondent fairly stated that in view of the petitioner's undertaking to conduct cross-examination within specified time, the petition could be disposed of.
Ratio Decidendi
When a party undertakes to conduct cross-examination within a specified time and the opposite party takes a fair stand, the court should set aside the no cross order and grant an opportunity for cross-examination in the interest of justice.
Judgment Excerpts
The petitioner, therefore, filed the said application Exhibit-28 for setting aside the order dated 15/07/2010, which came to be rejected by the impugned order dated 14/06/2011.
In view of the stand taken by the respondent, which in my view, is fair and reasonable. The impugned order dated 14/06/2011 is set aside and the following directions are issued.
Procedural History
The trial court passed a no cross order on 15/07/2010 and closed the matter for judgment on 03/12/2010. The petitioner filed application Exhibit-28 to set aside those orders, which was rejected on 14/06/2011. The petitioner then filed the present writ petition on 15/07/2011.
Acts & Sections
- Constitution of India: Articles 226, 227
