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Judgment
Sabyasachi Bhattacharyya, J
The present challenge is directed at the behest of judgment-resistors. In an application filed by the petitioners under Order XXI Rules 97 to 101 of the Code of Civil Procedure, stay was granted in favour of the petitioners upon imposition of occupation charges, which was challenged up to this Court. This Court passed an order for the executing court to revisit the matter and reassess the occupation charges upon permitting both sides to adduce evidence. The matter went up to the Hon'ble Supreme Court and the Supreme Court made such exercise time-bound. Thereafter, there was a conflict between the parties as to who would adduce evidence first with regard to the assessment of occupation charges.
Such conflict was resolved by an order dated July 29, 2019 passed by the executing court, wherein it was held that the petitioners (the present petitioners) should adduce evidence and the next date was fixed on August 13, 2019 for adduction of evidence of the PW 1.
On August 13, 2019, however, the petitioners made an application for adjournment, on the ground stated in the adjournment application. Learned senior counsel appearing for the petitioners submits that the valuer, whose report was sought to be produced in evidence, was not available since he was in Chennai on the said date. Whatever may the reason in the adjournment petition, the executing court refused to grant such adjournment and the evidence of the PW 1 was accordingly closed. Immediately thereafter, the opposite party's witness no. 1 (OPW1) was invited to adduce evidence and he did so and was cross-examined in part by the present petitioners. It is submitted by learned senior counsel for the petitioners that the petitioners cross-examined the said witness of the opposite parties under compulsion, since there was no other option left before the petitioners but to start such cross-examination in view of closure of the examination of the petitioners' witness. It is argued on behalf of the petitioners that subsequently the petitioners filed an application for recall of the previous order and for adduction of the engineer valuer's report as evidence, by calling for the said valuer as a witness. By the second impugned order dated August 27, 2019 (the first being the order dated August 13, 2019), such application for recall was also refused and it was recorded that the cross-examination of the OPW-1 was concluded and closed and the next date was fixed for arguments.
Learned senior counsel for the petitioners argues that the petitioners prayed for adjournment only on August 13, 2019 and, on other dates, either the presiding officer of the court did not sit or the matter could not be taken up due to resolution of the local Bar or adjournment was sought for on behalf of the opposite parties.
Learned counsel for the decree-holders/opposite parties, on the other hand, points out that even after August 13, 2019, the petitioners participated in the cross-examination of the opposite parties witness no. 1(OPW-1), on several occasions without praying for recall of the order dated August 13, 2019, by which the petitioners' evidence was closed.
Only at the final juncture of the cross-examination of the OPW 1, the application for recall was filed by the petitioners to by-pass the order dated July 29, 2019, so that the petitioners waited for completion of the evidence of the opposite parties and only thereafter, sought to adduce their own evidence, which was specifically turned down by the order dated July 29, 2019. Such application, as such, was correctly rejected by the executing court vide order dated August 27, 2019, as contended by the learned counsel for the opposite parties.
It is seen from the order sheet annexed, that the petitioners might have been at a minor fault on August 13, 2019 in praying for an adjournment virtually for the first time, although they knew that it was the date fixed for commencement of their evidence, on the ground of absence of the valuer, whose report was the most vital evidence to be produced by the petitioners. It can even be taken for argument's sake that the petitioners are justified in submitting that the cross-examination of OPW 1 could have begun under compulsion, since there was no way out for the petitioners on the said date itself.
However, such contention is belied by the subsequent conduct of the petitioners, who participated full-fledged on August 20, 2019 and August 26, 2019 by cross-examining the OPW 1 and also praying for adjournment to further cross-examine the said witness, without, for a single time, praying for recall of the order dated August 13, 2019. By such participation, the petitioners virtually acquiesced to the cross-examination of the OPW 1 and the order dated August 13, 2019, whereby the evidence of P.W. was closed.
Moreover, there was never any challenge at the behest of either of the parties against the order dated July 29, 2019, which specifically opined that the petitioners were to adduce evidence first.
In such view of the matter, the conduct of the petitioners in waiting for the last date of cross-examination of the OPW 1 for taking out a recall application and renewing their effort to adduce evidence of their witness, palpably appears to be mala fide, inasmuch as the petitioners tried to achieve indirectly, what they could not directly, by waiting for adduction of evidence of the opposite parties and then start their evidence, by seeking a new lease of life to such evidence on their part by filing a recalling application on the last date of cross-examination of OPW 1. By adopting such modus operandi, the petitioners palpably sought to frustrate the specific resolution of the dispute as to who should adduce evidence first, as recorded in the order dated July 29, 2019, which has already attained finality by way of not being challenged at any point of time. Such an effort, as rightly pointed out on behalf of the opposite parties, ought to be deprecated and the trial court was justified in doing so.
Hence, at the this belated juncture, there is no scope for reopening the evidence of the OPW 1 or any of the witnesses of the petitioners to prove their valuer's report, since the petitioners participated fully in the cross-examination of the OPW 1, thereby waiving their right to reopen the closure of their evidence. The recall application was filed at an extremely belated stage, after the entire cross-examination of the OPW 1 was almost over.
In such circumstances, there was no jurisdictional error in the impugned orders.
Accordingly, C.O. No. 3152 of 2019 is dismissed on contest, thereby affirming the orders of the court below.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of necessary formalities