1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Jagdish Prasad Vs. The Civil Judge, (Sr. Div.), Neem-Ka-Thana, District Sikar & Ors. (S. B. Civil Writ Petition No.5721/2010) S. B. Civil Writ Petition under Articles 226 & 227 of the Constitution of India. Date of Judgment: September 07, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Ms.Gayatri Rathore, for the petitioner. Mr.Mahesh Gupta, for respondent Nos.2 to 5. BY THE COURT: Aggrieved by the order dated 12.04.2010, passed by the Civil Judge (Sr. Division), Neem-Ka- Thana, District Sikar, whereby the learned Civil Judge has dismissed the petitioner's application for cross-examination of the defendant No.1. (the respondent No.2, before this Court), the petitioner has challenged the same before this Court. The brief facts of the case are that the petitioner had filed a civil suit wherein the petitioner had alleged that on a land measuring 63' 6” X 46' 6”, upon which the petitioner had 2 constructed a house, there existed a corner which was the joint property between the petitioner and the defendants-respondents Nos.2 to 5. About forty years ago the piece of land was divided between the petitioner and the respondents. Certain portion of the land fell in the petitioner's share. However, the respondent Nos.2 to 5 wanted to encroach upon the land and wanted to break the platform (Chabutra) and the construction made thereon. Therefore, the petitioner filed a civil suit for permanent injunction. The respondent Nos.2 to 5 submitted their written statement and denied the averments made in the plaint. According to them, the land on the southern part belongs to them and the petitioner had no right to the said land. During the course of trial, after changing the counsel by the petitioner, the new counsel discovered that material facts and pleas which should have been taken in the plaint were conspicuously missing. Therefore, the petitioner filed an application for amending the plaint. However, vide order dated 22.05.2009, the said application was dismissed. Thereafter, the petitioner filed a review application. However, vide order dated 04.08.2009, the said review application, too, was dismissed. Since the petitioner was aggrieved by both the orders, namely orders dated 22.05.2009 and 3 04.08.2009, he challenged them before this Court by filing a writ petition, namely S.B. Civil Writ Petition No.11460/2009 (Jagdish Prasad Vs. The Civil Judge, Neem Ka Thana, Sikar). The respondents raised a preliminary objection in the said writ petition claiming that the petitioner could not have challenged two separate orders by filing a single writ petition. Therefore, the petitioner was forced to confine his arguments with regard to the order dated 22.05.2009. Vide order dated 16.03.2010, this court quashed and set aside the order dated 22.05.2009 and also quashed the order dated 04.08.2009 as far as it related to the rejection of the review application. This Court was further pleased to set aside the order of cost of Rs.500/- which was imposed upon the petitioner by the trial court. In pursuance of the order dated 16.03.2010, the petitioner sought the necessary amendment in the plaint and also sought an opportunity to cross-examine the defendant No.1 (the respondent No.2 before this Court). Vide order dated 12.04.2010, the learned trial court has observed that vide order dated 04.08.2009, it had decided three different applications, namely the application for review of the order dated 22.05.2009, an application under Order 7 Rule 14 (3) CPC for taking certain documents on record, 4 and an application filed by the respondents for imposing cost on the petitioner for not cross- examining the defendants. According to the learned court, while rejecting the application for taking certain documents on record, the court had imposed a cost of Rs.1500/- and while accepting the application filed by the respondents the court had imposed a cost of Rs.250/-. According to the learned trial court, while this Court had merely quashed and set aside the cost imposed by the trial court namely Rs.500/- while rejecting the review petition, this Court did not quash and set aside the other costs imposed by the learned trial court totalling Rs.1750/-. Since the petitioner did not pay the cost of Rs.1750/-, he was debarred from cross-examining respondent No.2. Ms. Gayatri Rathore, the learned counsel for the petitioner, has vehemently contended that vide order dated 16.03.2010, this Court had also quashed and set aside the order dated 04.08.2009. Therefore, it implies that the other two costs, namely Rs.1500/- and Rs.250/-, which were imposed by the learned trial court, vide order dated 04.08.2009, were also quashed and set aside by this Court. Therefore, the petitioner was justified in not paying the cost of Rs.1750/-. Thus, the trial court is not justified in denying the opportunity to cross-examine the defendant 5 No.1 (the respondent Nos.2 before this Court). Secondly, the right to cross-examination is a valuable right. In case the petitioner were not permitted to cross-examine the defendant, the petitioner would not be able to question the truthfulness or otherwise of the deposition of the respondent No.2. Moreover, he would not be able to challenge the creditworthiness of the witness. Therefore, the right to cross-examine the defendant No.1 should not be brushed aside lightly by the trial court. On the other hand, Mr. Mahesh Gupta, the learned counsel for the respondent Nos.2 to 5, has strenuously contended that once a cost had been imposed by the trial court, the petitioner was duty bound to pay the same. Moreover, in the order dated 16.03.2010, this Court had merely set aside the imposition of cost of Rs.500/-, but had not expressed its opinion with regard to the other two costs which were imposed by the trial court, namely Rs.1500/- and Rs.250/-. Therefore, the petitioner is not justified in his interpretation that he did not have to pay the said costs. Hence, the learned counsel has supported the impugned order. Heard the learned counsel for the parties and perused the impugned order. 6 Undoubtedly the right to cross-examine a witness is an essential right. For, the credibility of a witness is always decided on the touchstone of the cross-examination. Until and unless a witness is subjected to a cross- examination, the falsity of his statement cannot be exposed before the court. Moreover, if a witness were not cross-examined, the court would be forced to accept his examination-in-chief almost as a gospel truth. Therefore, the court should be weary of denying the right of cross- examination on hyper-technicality such as non- payment of cost. Since the courts are meant to do justice to both the parties, instead of denying the right to cross-examine a witness, the court is free to impose further condition and yet give the right of cross-examination to a party. The impugned order dated 16.03.2010 reads as under : In view of the above, I am inclined to accept this writ petition, the same is allowed. The impugned order Annexure-3 dated 22.05.2009 is set aside. It may also be mentioned here that against the impugned order the plaintiff-petitioner had also preferred an application by way of review before the learned trial Court, which was rejected by the 7 learned trial Court vide order dated 04.08.2009 (Annexure-10) with costs. In view of the fact that the impugned order Annexure-3 dated 22.05.2009 has been set aside, the order Annexure-10 dated 04.08.2009 is also set aside. The amendment, as prayed for is allowed. The amended plaint shall be filed on the next date, already fixed if not already filed and the copy of the same be furnished to the learned counsel for the defendant. It has been brought to the notice of the Court that while rejecting the review application vide order Annexure-10 dated 04.08.2009 costs of Rs.500/- had been imposed upon the plaintiff-petitioner. Since, the writ petition against the Annexure-3 dated 22.05.2009 has been allowed and the impugned orders Annexure-3 and Annexure-10 have been set aside, the order of costs is also set aside. The writ petition stands disposed of as above. A bare perusal of the this order clearly reveals that in the last para, the learned Co- ordinate Bench had opined that “since the writ petition against the Annexure-3 dated 22.05.2009 has been allowed and the impugned orders Annexure- 8 3 and Annexure-10 (order dated 04.08.2009) have been set aside, the order of costs is also set aside”. It is essential to note that the word “costs” has been used. Therefore, the petitioner was certainly justified in concluding that all the different costs imposed by the order dated 04.08.2009 has been set aside. Unfortunately, the learned Co-ordinate Bench while setting aside the order dated 04.08.2009 did not specify whether the costs of Rs.1500/- and Rs.250/- were set aside or not. Therefore, the interpretation given by the petitioner is certainly a plausible interpretation of the order dated 16.03.2010. Hence, he would be justified in not having paid the said costs. Thus, it is a case of bona-fide mistake of fact. Hence, the learned trial court is not justified in denying the petitioner the right to cross-examine the defendant No.1 as the interpretation given by the petitioner is a plausible one of the order dated 16.03.2010. However, a bare perusal of the order dated 16.03.2010 also reveals that the petitioner had confined his argument only to the order dated 22.05.2009 i.e dealing with rejection of his application for amendment in the plaint. This Court had allowed the writ petition as far as the order dated 22.05.2009 was concerned. Since the order dated 22.05.2009 was set aside, consequently 9 part of the order dated 04.08.2009 dealing with the rejection of the review application was also allowed by this Court. Thus, this Court had set aside only part of order dated 04.08.2009. A bare perusal of the order dated 04.08.2009 clearly reveals that the said order dealt with three different applications, as mentioned above. The portion of the order dated 04.08.2009 which dealt with the rejection of the application under Order 7 Rule 14(3) CPC, and part of the order which dealt with the acceptance of the respondents' application for imposing a cost upon the petitioner for not cross-examining the defendant's witness, these two parts were neither challenged, nor were argued by the learned counsel for the petitioner before the learned Co-ordinate Bench. Therefore, there was no occasion for the learned Co-ordinate Bench to set aside these parts of the order dated 04.08.2009. Thus, obviously while setting aside the order dated 04.08.2009, this Court did not mean to set aside these two parts of the order dated 04.08.2009. Hence, the part of the order imposing a cost of Rs.1500/- and Rs.250/- were not even touched by this Court. Considering the fact that the order dated 16.03.2010 is an ambiguous one, considering the fact that the petitioner does have the right to 10 cross-examine the defecation No.1, considering the fact that there is bona-fide mistake of fact, this Court is of the opinion that the petitioner should be given one month's time to pay the cost of Rs.1750/-. In case the said amount is paid, he shall be given the right to cross-examine the defendant No.1 (the respondent No.2 before this Court). For the reasons stated above, this petition is, hereby, allowed. (R.S. CHAUHAN) J. Manoj solanki