Madhya Pradesh High CourtSmt. Renuka Doshi vs Smt. Rama Telang on 25 April, 20131



                         W.P. No.3288/2013
25/4/2013:
       Shri Rajesh Patel, learned counsel for the petitioner.
       Shri Shreyas Dubey, learned counsel for the respondents.Challenging an order dated 7.8.2012 and an order dated
18.1.2013 Annexure P/7 rejecting an application for review filed by
the petitioner, this writ petition has been filed.Petitioner is a plaintiff and has filed the suit in question. Suit
was at the stage of evidence and petitioner had filed affidavits of the
witnesses.    The case was listed for cross examination of the
witnesses of the petitioner on 22.12.2011, thereafter, on 22.2.2012
two of the witnesses namely Smt. Neelam and Smt. Manorama were
produced for cross examination.        They were cross examined on
22.12.2011 and 22.2.2012. Another witness Shri Susheel was to be
cross examined and for the said purpose case was fixed on 7.8.2012.
However, on the said date the witness Susheel was not present and
finding that witness has not been produced inspite of giving
opportunity and no justifiable cause has been shown for non
production of witness for cross examination, the right for examining
the witness was closed and when the review was also dismissed vide
Annexure P/7, this writ petition has been filed.Learned counsel for the petitioner submitted that on 7.8.2012
the case was listed for consideration of certain application underOrder 6 Rule 17 CPCand an application filed by the petitioner underSection 24for transfer of the proceeding were also pending and
under a misapprehension that proceeding would be held only after
application underSection 24is decided, witness was not presented
on the said date. Contending that bonafide error occurred on the part
of the petitioner, due to wrong advice, he prays for grant of one more
opportunity to cross examine the witness Susheel.2Even    though       learned   counsel   for   the   respondents
             vehementally opposed the aforesaid prayer, but considering the fact
             that reasonable prayer only for the purpose to keep the witness
             present for cross examination has been made, interest of just requires
             and a as if such opportunity is not being granted the possibility of
             remand of the matter back cannot be ruled out by the Appellate
             Court.Keeping in view the aforesaid, this petition is allowed. It is
             directed that on the parties appearing before the Trial Court along
             with certified copy of this order on 6th May, 2013, the learned
             Court below shall fix a date for cross examination of the witness
             Susheel and on the date so fixed the petitioner shall cross examine
             the witness Susheel and thereafter, the matter can be proceeded
             further in accordance with law. However, it is made clear that if the
             witness Susheel shall not remain present, no further time shall be
             granted and the Court shall be free to proceed in the matter.The right of the petitioner to cross examine the witness
             Susheel shall be subject to payment of cost of Rs.2500/- to the
             respondents.With the aforesaid, petition stands allowed and disposed of.
                      c.c. as per rules.( Rajendra Menon )
                                                                     Judge
Mrs.mishra