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SCA/11272/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11272 of 2009
======================================
LEENABEN
KETANBHAI BACHKANIWALA & others
Versus
MANHARLAL
RATILAL BACHKANIWALA & others
======================================
Appearance :
MR
UDAYAN P VYAS for Petitioners
MR DC DAVE for Respondent Nos. 1 to
6
Mr.
Mehul Shah for respondent No.7
======================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 12/08/2010
ORAL
ORDER
1 The
petitioners [original defendant Nos. 3 to 5] have filed this petition
under Articles 226 and 227 of the Constitution of India with the
following relief:
[A] That
this Hon’ble Court be pleased to issue writ of certiorari or a writ
in the nature of certiorari or any other appropriate writ, order or
direction quashing and setting aside an Order dated 16th
September 2009 passed below Application Exh.1217 [Annexure J ]
by the 10th Additional Senior Civil Judge, Surat, in
Special Civil Suit No.262 of 2003;
[B] That
this Hon’ble Court be pleased to issue writ of mandamus or a writ in
the nature of mandamus or any other appropriate writ, order or
direction directing the 10th Additional Senior Civil
Judge, Surat, to accord an opportunity to the petitioners herein to
cross examine the plaintiffs and their witnesses before the defendant
Nos. 1 and 2 cross examine the plaintiffs and their witnesses in
Special Civil Suit No.262 of 2003;
2 It
is not in dispute that earlier Special Civil Application No.2474 of
2009 was filed by the original defendant Nos. 3 to 5 of Special
Civil Suit No.262 of 2003 praying for an opportunity to cross-examine
the plaintiffs. The application was filed by defendant Nos. 3 to 5
before the trial court to cross-examine the plaintiffs and defendant
No.1 also filed the application Exh.1177 objecting the prayer of
defendant Nos. 3 to 5 to cross examine the plaintiffs and their
witnesses. The trial court allowed the objection application Exh.1177
filed by defendant No.1 and rejected the application filed by
defendant Nos. 3 to 5. In the context of the aforesaid facts, this
Court [Coram:C.K. Buch, J.] passed the following order dated
18.3.2009 in Special Civil Application No.2474 of 2009:
The
present petition is preferred by original defendants No.3 to 5 of
Special Civil Suit No.263 of 2003. The petitioner prayed that they
may be accorded opportunity to cross-examine the plaintiffs and this
request was made after the cross-examination by contesting defendants
No.1 and 2. It is the say of the petitioner that their right has
been wrongly denied by learned lower Court while dealing with the
application Exh.1177 and therefore in exercise of powers vested with
the Court under Article 227 of the Constitution of India, appropriate
writ, order or direction may kindly be issued.
2. In
response of the query raised by this Court, it is submitted that as
such interest of the petitioner defendants Nos.3, 4 and 5 is not
adverse to material extent with plaintiff and they can be considered
to be supporting defendants. Mr.Mehul Shah, learned Advocate
appearing on behalf of caveator has taken this Court through the
written statement filed by the petitioners-defendants No.3,4 and 5
and Mr.Shah is right in contending that these defendants may not be
treated as party having adverse or conflicting interest with the
plaintiff.
3. On
plain reading of the plaint, claim and written statement submitted by
defendants No.3, 4 and 5, it appears that there is small element of
conflict of interest between the defendants No.3, 4 and 5 and the
plaintiff, more particularly, in the background of the contents of
the reply affidavit filed by the present petitioners in application
Exh.1177 which is referred to by the learned Judge in the order
passed in application Exh.1177.
4. The
supporting defendants, if has any minor conflict of interest with the
plaintiff, then the learned Judge is supposed to exercise the powers
in permitting such defendants for cross-examine the plaintiff for
such limited purpose initially and prior to cross-examination by the
contesting defendant. In the present case, undisputedly the
examination in chief, as well as, cross-examination of the contesting
defendants No.1 and 2 was over and thereafter attempt has been made
by the supporting defendants to have cross-examination the plaintiff.
This attempt was objected by the contesting defendants by placing
application Exh.1177. The order of the Court allowing application
Exh.1177 is ultimately found legal. When the ultimate finding is in
accordance with the law and procedure prescribed, the same should not
be disturbed in exercise of power of superintendence.
5. There
is no scope to interfere with the finding arrived at by the learned
trial Judge and petition is, therefore, dismissed in limine.
[emphasis
supplied]
3 Again,
in the present petition, the challenge is made to the order dated
16th September 2009 passed below Application Exh.1217 by
which, the request of the original defendant Nos. 3 to 5 to examine
the witnesses of the plaintiffs came to be rejected.
4 Having
heard the learned advocates for the parties and on perusal of the
record, in my view, the nature of application Exh.1217 appears to be
the same, in as much as, earlier also application was made by the
original defendant Nos. 3 to 5 to cross-examine the plaintiffs and
witnesses and, upon objection application Exh.1177 filed by defendant
No.1, the trial court allowed the objection application and rejected
the request of the original defendant Nos. 3 to 5 to cross examine
the plaintiffs. The issue involved in the present petition is covered
by the order dated 18.3.2009 passed by this Court [Coram:C.K. Buch,
J.] in Special Civil Application No.2474 of 2009 and, accordingly,
the trial court has not committed any error in rejecting the request
of the original defendant Nos. 3 to 5 to cross examine the plaintiffs
and their witnesses.
Hence, this petition is rejected. Notice is discharged. There shall
be no order as to costs.
(ANANT
S. DAVE, J.)
(swamy)
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