SCA/1207/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1207 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= A LATIF A GANI NOORANI - Petitioner(s) Versus VIJAYALAXMI ENTERPRISE PVT LTD - Respondent(s) ========================================================= Appearance : MR PRADEEP PATEL for Petitioner(s) : 1, MR SP MAJMUDAR for Respondent(s) : 1, MR PP MAJMUDAR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 28/07/2008 ORAL JUDGMENT 1. Rule. Mr.P.P.Majmudar, learned Advocate waives service of notice of rule on behalf of the respondent. With the consent of the learned Advocates appearing on behalf of respective parties, the petition is taken for final hearing today. SCA/1207/2008 2/5 JUDGMENT 2. By way of this petition under Article 227 of the Constitution of India, the petitioner – original defendant who is aged about 82 years of age and who is not keeping good health due to old age, has prayed for an appropriate Writ, direction and or order quashing and setting aside the orders dated 23.11.2006 passed below Exh.74, order dated 20.02.2007 passed below Exh.75 and order dated 25.07.2007 passed below Exh.87, passed by the learned Principal Senior Civil Judge, Dhoraji in Special Civil Suit No.179 of 2001 (Old Number 151 of 1997), by which the learned trial Court has rejected the aforesaid applications submitted by the petitioner herein – original defendant who is aged 83 years. It appears from the pleading and proceedings that learned Advocate appearing for the petitioner could not get instructions from the petitioner so that he can cross examine the plaintiff, as the petitioner was not in a position to go to the Office of the learned Advocate. It appears that subsequently learned Advocate had gone to the residence of the petitioner and at that time son of the petitioner who was residing at Mumbai was called and learned Advocate got further instructions and thereafter, application was given by the petitioner to reopen the right of the petitioner to cross-examine the plaintiff which came to be dismissed by this Court. 3. While issuing notice dated 10th March, 2008, learned Single Judge of this Court has directed the petitioner to deposit an amount of Rs.10,000/- SCA/1207/2008 3/5 JUDGMENT (Rupees Ten Thousand only), which is reported to have been deposited by the petitioner. 4. Petition is opposed by Mr.P.P.Majmudar, learned Advocate appearing on behalf of the respondent – original plaintiff by submitting that twice opportunity was given, but the learned Advocate appearing on behalf of the petitioner did not cross- examine the plaintiff and therefore, last application submitted by the petitioner has been rightly rejected by the learned trial Court. 5. Heard the learned Advocates appearing on behalf of the respective parties. 6. It appears that and it is not disputed by learned Advocates appearing on behalf of the respective parties that the petitioner is aged 82 / 83 years. It appears that the petitioner is not keeping good health due to old age and even he is not in a position to speak. Medical certificate is also produced on record. Under the circumstances and considering the averments in the last application, the learned trial Court ought to have given opportunity to the petitioner to cross-examine the plaintiff by imposing certain conditions inclusive of payment of costs by directing the petitioner to cross-examining the plaintiff on particular date. 7. Mr.Nikil Joshi, learned Advocate for Mr.Pradeep Patel, learned Advocate for the petitioner has submitted that the petitioner will cross-examine SCA/1207/2008 4/5 JUDGMENT the plaintiff on the date that may be fixed by this Court. He has further submitted that if suitable direction is given directing the learned trial Court to take the Suit on Board on 13th August, 2008, the learned Advocate appearing on behalf of the petitioner would cross-examine the plaintiff on that day. He has also further submitted that an amount of Rs.10,000/- deposited by the petitioner may be directed to be paid to the respondent by way of costs of present proceedings as well as costs of reopening right to cross-examine the plaintiff. 8. Considering above, impugned orders dated 23.11.2006 passed below Exh.74, order dated 20.02.2007 passed below Exh.75 and order dated 25.07.2007 passed below Exh.87, passed by the learned Principal Senior Civil Judge, Dhoraji in Special Civil Suit No.179 of 2001 (Old Number 151 of 1997) are hereby quashed and set aside and right of the petitioner – original defendant to cross-examine the plaintiff is reopened. It is directed to the learned Trail Court to take Special Civil Suit No.179 of 2001 (Old Number 151 of 1997) on Board on 13th August, 2008 and the petitioner and/or his Advocate shall cross- examine the plaintiff on that day. On that day, the plaintiff shall also remain present for his cross- examination. If the petitioner and/or his Advocate fails to cross-examine the plaintiff on that day, it is understood by the learned Advocate appearing on behalf of the petitioner that further opportunity will not be given to the petitioner to cross-examine SCA/1207/2008 5/5 JUDGMENT the plaintiff and his right will closed forever. Registry is directed to issue Cheque of Rs.10,000/- deposited by the petitioner in favour of the respondent herein by Account Payee Cheque (amount which is deposited pursuant to the order dated 10.03.2008 passed in the present proceedings by way of costs of present proceedings as well as for reopening the right of the petitioner to cross- examine the plaintiff). 9. Rule is made absolute to the aforesaid extent. Direct service is permitted. [M.R.Shah,J.] satish