Poonam Kumar v. M/SH M Enterprises

1. The present petition challenges the order dated 15^*^ January,2019 by which the rightto cross examine the Plaintiffs witnessPWl has been closed by the Trial Court, and order dated 14^^ October, 2019 by which an application seeking recall ofthe order dated 15^*^ January,2019 has also been dismissed.

2. The petition arises out ofa suit for recovery ofa sum ofRs. 89,440/along with interest. The affidavit ofPWl was filed by the Plaintiff and for the first time, PWl's examination in chief was recorded on 10^^ January, 2018.On 22"^* February,2018 some objections were raised,and the Plaintiff soughttime to move an application for exhibition ofthe documents attached with the evidence by way of affidavit. Thereafter, on four dates i.e. 26^*^ May,2018,7*August,2018,18'*^ September,2018 and 17November,2018, the Defendant did not appear in the matter. Finally, on 15^*^ Januaiy, 2019 since none appeared for the Defendant, after recording the examination in 2020:DHC:3873 ' / '1 chief,the Trial Court closed the Defendant's right to cross examination and listed the matter for Defendant's evidence.

3. In the order dismissing the recall application,the Trial Court records that three opportunities were given for cross examination and hence further opportunity cannot be granted.

4. Ld.counsel for the Petitioner submits that it was only on 15^ January, 2019, for the first time, the Plaintiffs witness had concluded the examination in chief, and the immediate next effective date was 14'^ X October,2019 on which datethe application seeking recall was decided.He submits that three opportunities were never granted for cross examination and this has been wrongly recorded by the Trial Court. On the other hand. Id. counsel for the Plaintiff submits that Defendant had stopped appearing for more than a year in the matter and accordingly the Trial Court's order is justified.

5. In the order dated 14'*^ October,2019,the trial court rejects the prayer to recall the witness on the ground that more than three opportunities were; given.The relevant portion ofthe order reads as under: '"'"Plaintiff has already been granted multiple opportunities and certainly more than three opportunities to cross-examine plaintiff witness. The proviso to Order XVII Rule 1 CPC provides that no adjournment shall be granted more than three times to party during the hearing ofthe suit. The court is in agreement with the submissions made on behalf of plaintiff. No ground is made out to allow the present application. Hence the same is dismissed. The application is disposed ofaccordingly" A perusal ofthe order sheet'revealsthatthough adjournments weresoughtin the past,once the examination in chiefwas concluded,only one opportunity c was given for cross examination and notthree opportunities as recorded by the trial court. Considering the fact that there has been an error in the recording by the Trial Court,the Defendantis given one last opportunity to cross examine PWl, subject to payment of Rs. 10,000/- as costs to the Plaintiff. The same shall be paid on the date when the witness appears before the Trial Court.

6. On the date fixed by the Trial Court, the cross examination shall be concluded by the Defendant, and no further opportunity shall be granted. { The present order is peremptory and ifthe costs are not paid or the cross examination is notconducted on the date fixed,no further permission can be granted by the Trial Court

7. The petition with all pending applicationsis disposed of.

PRATHIBA M.SINGH,J. '\ ^ARCH03,2020 MR/RG