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Judgment
This Civil Revision Petition is filed aggrieved by the docket order dated 28.02.2023 in O.S.No.1001 of 2014 by the II Additional District at Malkajgiri, Medchal-Malkajgiri District, as being illegal and contrary to settled principles of law.
Heard learned counsel for the petitioner and perused the record.
The petitioners herein are the defendant Nos.1 to 4 in the suit filed for recovery of money and consequential permanent injunction against the assets of the respondent No.1 herein.
It is the case of the petitioners that the matter was posted for cross examination of PW-1 on 24.11.2022. Thereafter, the Court below adjourned the matter to 20.12.2022 for further cross-examination of PW-1. On the said date the Counsel for the petitioners herein was unwell and could not cross examine PW-1. In view of the same, the Court below had appointed an Advocate Commissioner to record further cross-examination of PW-1, adjourning the matter to 12.01.2023.
It is contended that the further cross-examination of PW-1 could not be completed within stipulated time as the brother of the petitioner No.2 herein had expired on 28.12.2022. Thereafter, the matter was adjourned thrice i.e., on 18.01.2023, 31.01.2023 due to the petitioner No.2’s ill-health, and on 13.02.2023 as it was reported that the witness underwent operation on 25.01.2023, before being finally adjourned to 28.02.2023. On 28.02.2023, as the petitioners herein had yet again sought an adjournment by way of filing an application under Order XVII Rule 1 of the Code of Civil Procedure 1908, the Court below had passed the impugned order closing the evidence of PW-1. Aggrieved by the same, the present revision is preferred.
It is contended that the Court below ought to have considered the fact that the petitioner No.2 who is the Managing Director of the petitioner No.1 herein, was the only person looking after the case; and that he had undergone a bypass surgery on 19.01.2023 and was under bed rest on medical advice. It is contended that they were compelled to seek an adjournment owing to the said reason, and that the Court below ought to have allowed the application granting the petitioners herein one last opportunity to further cross-examine the PW-1.
I have taken note of the contentions urged.
A perusal of the impugned order reveals that PW-1 was recalled for cross-examination on an application being made by the petitioners herein. Further, admittedly the appointment of Advocate Commissioner to record the further cross-examination of PW-1 was made on the request of the Counsel for the petitioners herein. It is also admitted that the matter was adjourned on multiple occasions at the request of the petitioners herein before being finally adjourned to 28.02.2023. The petitioners herein despite being aware that the matter was adjourned to 28.02.2023 as a last chance, had made another request to adjourn the matter. Thus, the conduct of the petitioners in repeatedly taking adjournments in a suit instituted in the year 2014, despite having requested to further cross-examine PW-1, in the view of this court qualifies to be called as a dilatory tactic.
Further, the contention of the petitioners that the said adjournment was sought on account of ill-health of the petitioner No.2, also cannot be countenanced on two grounds: Firstly for cross-examining PW-1 the same requires the presence of the petitioners Counsel and not that of the petitioner No.2 himself, and Secondly, the impugned order categorically records that an adjournment was sought by the counsel representing the petitioners herein on the ground that he has no instructions from the petitioners herein, this statement made by the counsel for the petitioners herein before the court below negates the plea that the adjournment was sought due to the ill-health of the petitioner No.2.
However, since the substantial rights of the parties are involved, taking a rigid view and depriving the petitioners herein from exercising their right to further cross examine PW-1, would be detrimental to their case. It is well settled that procedural laws are designed to facilitate justice, and not to frustrate the ends of justice. The Supreme Court in Kusum vs. Kanchan Devi and Ors (2005)6SCC705, has held as under:
“Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.”
In light of the above enunciated position of law, this court is of the view that the petitioners herein should be granted an opportunity to further cross examine PW-1 as a last indulgence. However, since the PW-1 was present on every adjournment barring on 13.02.2023, this Court is of the view that the prejudice caused to PW-1 can be compensated with costs.
Accordingly, the preset Civil Revision Petition is allowed. The docket order dated 28.02.2023 in O.S.No.1001 of 2014 by the II Additional District at Malkajgiri, Medchal-Malkajgiri District is set-aside. The evidence of the PW-1 is reopened, granting the petitioners herein one last opportunity to further cross-examine PW-1, subject to payment of Rs.25,000/- (Rupees Twenty Five Thousand Only) as costs to PW-1. Further the petitioners herein are directed to avail the indulgence shown by this court and complete the further cross-examination of PW-1 on or before 25.04.2023.
Consequently, miscellaneous petitions pending if any shall stand closed.